Barber v. Tryon & Pierce

41 Iowa 349 | Iowa | 1875

Day, J. —

The property was appraised at $400.00, two-thirds of which is $266.66. The incumbrances were reported at $140.00, and tbe land sold for $126.70, which, added to the. incumbrances, makes $266.70, or more than two-thirds the appraised value, if the incumbrances were correctly' reported. See Sargent v. Pittman Bros. & Co., 16 Iowa, 469.

i junrciAii praSement: incumbrance. 2.-: —: burden of proof. 3.--: purchaser; Whether the amount of the incumbrances is to be estimated and returned by the appraisers, or determined at his peril by PT’ckaser, the statute does not prescribe, and we nee<^ no^ now determine. The plaintiff is seekjng reijef Up0n the ground that the property did not sell for such sum as, added to the incumbrances, amounts to two-thirds the appraised value, and upon him is the burden of establishing that fact. If it should turn out that the sale was made for such sum, or if it does not affirmatively appear that it was not, the sale must be upheld, even if the amounts of the incumbrances were not ascertained by any one. It is not the fact that the incumbrances were ascer- . tamed, but that the sale was made for two-thirds the appraised value, that is material. Now, we think the plaintiff has failed to make appear affirmatively facts ■ sufficient to vitiate this sale. There was, at the time of the sale of record against this land, an unsatisfied school fund mort-. gage for $100.00, dated January 1st, 1871. At the time of the sale this at ten per cent amounted to about $122.00. It is true the auditor testifies that of this sum, $100.00' had been paid, and that the records on the school fund books in his office show the payment. But the mortgage remained unsatisfied, and was a subsisting incumbrance against the property, so far as the records disclosed. It cannot be that a purchaser at sheriff’s sale is bound to look beyond the records for the pur7 pose of determining whether apparent liens or incumbrances have not been discharged. It is the duty of the judgment debtor to furnish the proper evidence of that. This iucumbrance amounts to within $18.00 of the amount deducted by the appraisers, and, added" to the bid, makes two-thirds the appraised value. Plaintiff introduces the recorder, and the clerk of the District Court, and shows that there are no incumbrances recorded, except the school fund mortgage, and no judgments against William Barber, except Alie one under wbicb the property was sold. But lie ought to have gone one step further, and shown that there were no unpaid taxes, which constituted a lien against the property at the time of the sale. Having failed in this, he has not shown that the property did not sell for such sum as, added to the incumbrances, equals two-thirds the appraised value.

líe has not made such an affirmative case as entitles him to relief.

As the defendant’s title is absolute under the sale in virtue of the judgment against plaintiff, it is not necessary to determine the validity of the other two sales.

Affirmed.