21 Iowa 302 | Iowa | 1866
The case has been submitted without reference to authorities, and 'we shall decide but one question, and that is, can defendant be held liable for the amount received by him of Barrett, having bought the note at a judicial sale, without notice of plaintiffs’ rights, it being conceded that they had, prior to that time, obtained, by' verbal transfer, the interest of the payee therein ?
Appellants claim that the case of Allison v. Barrett (16 Iowa, 218), growing out of this same transaction, settles this question in their favor. This is not our understanding of that case. There Barrett had notice of plaintiff’s interest in the note before he paid the same to this defendant. Here, however, there is no averment that defendant had such notice before his purchase. The note
Then again, in the case relied on, it appeared that King had notice of the transfer of the note before the sale by the officer, though after the levy. This petition contains no such averment. And herein is the radical error of the pleader. If King bought and paid his money without notice of the sale of this note to plaintiffs, or of their interest therein, he would be protected. True it is, that he bought but the interest of Pendergast therein, but that interest the law treats as complete or full, as against plaintiffs, in the absence of notice of their purchase, if there was notice before the judicial sale, though after levy a very different question would arise. This petition fails to aver notice at any time.
In the cases heretofore decided by this court, analogous to this, the question arose between the creditor and purchaser, the creditor having notice after the seizure- and before sale under the writ. We cite the following as of this character: Thomas v. Hillhouse, 17 Iowa, 67; Norton v. Williams, 9 Id., 528; Sausee v. Wilson, 17 Id., 582. The case of Rakestraw v. Hamilton, 14 Id., 147, is not in conflict, for there the party claiming adverse to the title under the judicial sale had possession of the
No case has been brought to our attention which gives priority to a purchaser from the debtor over one purchasing at a judicial sale, who pays his money in ignorance of such prior purchase. And we are not prepared to award such priority in this case, where the subject of sale was a promissory note, attempted to be transferred by a verbal sale, bearing no marks of assignment or sale, found in the hands of the payee’s agent, levied upon and sold in the manner pointed out. by the statute, and purchased thereunder in good faith by defendant.
In our opinion the demurrer was properly sustained, .and the judgment is
Affirmed.