Ayres v. Campbell

9 Iowa 213 | Iowa | 1859

Woodward, J.

There is no provision of the statute requiring notice of an execution, or of a levy, to be served on a defendant. The law leaves him to ascertain these things at bis peril, assuming that be will know when a judgment is recovered against bim, and will take notice of what will follow thereon.

The petitioner seeks to set aside the sale on two grounds. The first, is, that the land was sold for a greatly inadequate price, and that there was collusion, &c. Upon the subject of inadequacy of price, we refer to what is said in Cavender v. Heirs of Smith, 1 Iowa, 307—355. But the principal difficulty on the part of the complainant is, that he has introduced no evidence whatever on the subject. His averments are not admitted by the defendants, and there is no evidence sustaining them.

There are circumstances alleged by the petitioner, which might probably present a ground for equitable relief, if they were sustained by proof. It is averred that a prior execution had been issued and levied upon another tract of land, which levy had not been disposed of, when the second execution was issued and levied upon the tract now in question. This is the second ground upon which relief is sought. The complainant waived the oath to the answers of the respondents, and they accepted the waiver, and answered without adding the jurat. McHenry admits the existence of two executions and levies, but Bates denies them. The petitioner offers no proof to sustain his averments. Campbell claims under Bates, and professes ignorance upon the matter. He would be bound, as we think, by any thing which would bind Bates, and Bates would be held, if it were merely a question of notice. But it is not this. It is a question of fact, and Bates denies. Now there is nothing to meet this denial, nothing to approve the alleged fact, against Bates, unless the answer of McHenry may be received" against him. On the former hearing of the case, we viewed it more as a question of notice only, and so far as fact was in question, it was thought that the answer of McHenry could be received against Bates. But upon a reconsideration of the case, we are satisfied that it does not depend upon notice alone, but upon fact, and that the answer of McHenry cannot be taken to prove, it against Bates. An answer, to be thus used, must be under oath. 1 Greonleaf on Ev. sections 178, 181, and notes and authorities.

General note. The State of Iowa v. Williams, 8 Iowa 533, was followed by the court in The State of Iowa y. Martin, decided at the present term. The judgments of the court below, in Acker v. McGravey, Utter y. Smith, and Miller y. Tanander, from the Dubuque District Court, were reversed, in an opinion by Wright, C. J. following Kramer v. Rebman, ante; Cooley v. Hobart, 8 Iowa 358; and Duncan y. Hobart, lb. 337. These cases being merely cumulative, are not reported at length.

And it is doubtful whether the relation between the sheriff and the execution plaintiff, creates such a privity as to authorize the answer of the former to be taken against the latter. Greenl. supra. Part 2d of Cow. & H. notes to Phil. Ev. 54 and 56, where the question is discussed, and the authorities collected. This point is not determined absolutely now, because it is sufficient that the answer proposed to be used in evidence, is not made under oath.

The complainant, therefore, not having supported the material averments of his bill, by offering any evidence, it is considered that the petition is not sustained, and that the equities of the case are with respondents; and it is ordered that the decree heretofore entered in this court, herein, be set aside, and that the decree of the District Court be affirmed.