dissenting.
I concur in Parts I, II, and III of the Court’s opinion, but dissent to Parts IV and V, for the following reasons.
I disagree with the Court’s rationale for holding that no fraud upon the court was committed by the false statement contained in Parrish’s verified “Petition to Quiet Title.” Paragraph 5 of the petition states, as to Davis’ interest in the property, that “Defendant’s claim is without any right whatever; Defendant has no right, estate, title, hen or interest in or to the property, or any part thereof.” This statement is false. Davis’ interest, indisputably known to Parrish, was that of a co-tenant. Davis had exactly the same interest as Parrish at the time of the filing of the petition, and that fact should have been made known to the district court.
The Court believes that statements made by Parrish in her affidavit seeking the permission of the court to serve Davis by publication cures the false statement made in the petition. A close examination of those statements reveals this is not so. The affidavit states as follows regarding the identity of Davis and any ownership interest she might have:
[Parrish] received, through her deceased father, the real property described herein along with a half-sister who your affiant never really knew while being raised to the present; your affiant has only met Defendant, Barbara Hayes Tyler, on a few occasions; that her whereabouts are unknown to Plaintiff ...”
*600This statement does not reveal that the half-sister and Davis (akaTyler) are one and the same. Indeed a fair interpretation would be that Davis and “a half-sister” are different people. Moreover, the statement does not reveal that the half-sister continues to have an interest in the property, nor the exact nature of the interest. The interest is certainly not described as a co-tenancy. Because this statement is vague and uninformative as to both Davis’s co-tenancy and her status as Parrish’s half-sister, I conclude that it does not inform the district court in the quiet title action of either the familial relationship or the cotenancy or indeed any ownership interest of Davis.
Because I conclude that the false statement about Davis’s ownership interest constituted a fraud upon the court, I would remand this case to the district court with instructions to grant Davis’ motion for summary judgment.
SCHROEDER, J., concurs.