33 Iowa 318 | Iowa | 1871
Lead Opinion
The plaintiff here rested his case.
The defendants and appellees then offered in evidence, without objection, a deed from Peter Bunyon to John I. Blair for the land in controversy, bearing date December 31, 1866, conveying the land in dispute to said Blair.
The defendants next offered in evidence the record of a deed of trust executed by the plaintiff, Cornelius Beal, and Irene A. Beal, his wife, by which the plaintiff conveyed the land in controversy “ to William Holmes, sheriff of Boone county, Iowa, and to his successors in office,” in trust" to secure to Peter Bunyon the payment of $675 at the end of six months from the date of the deed. The
1. Because of interlineations in the record of the word “ township,” preceding the figure “ 84,” and the words “ twenty-one,” preceding the figure “ 21.”
2. That the deed was void for want of certainty in the description of land intended to be conveyed, and did not describe the land in controversy. "Whereupon defendants called L. J. Dume who, being sworn, said : “ I have for a long time been deputy recorder of this county. The record of this deed of trust is in the handwriting of A. J. Parvin, a deputy recorder of this county. The interlineations are also in his handwriting, and appear to have been made at the same time the deed of trust was recorded.”
The court overruled the objections and admitted the deed in evidence, to which plaintiff excepted and assigns his ruling as error. The appellant, however, urges only the second ground of objection, viz.: That “ the trust deed was void for uncertainty in the description of the land sought to be conveyed.”
It is urged that the description, “ commencing at the south-east corner of section twenty-one (21), township eighty-four (84), range twenty-six (26),” etc., is uncertain.
There can be no uncertainty about this description. Every one in any degree familiar with the surveys and description of lands in Iowa will at once understand that “ township eighty-four, north of the base line of range twenty-six, west of the fifth principal meridian,” was intended, there being no other township or range in Iowa that can be described as “township eighty-four, range twenty-six.”
The first objection is, that the grant in the deed of trust was to William Holmes in his individual capacity and not to him as sheriff.
If the grant had been to “ William Holmes, sheriff of Boone county, Iowa,” without more, there would perhaps be ground for this objection. It might be argued that the words “sheriff of Boone county” were but descriptio personam. But the grant is not only to Holmes the then sheriff, but also to Ms successors in office, showing most clearly that it was the intention of the parties to the trust deed that the person holding the office of sheriff of the county should execute the trust, whether such person was the one named in the trust deed or Ms successor in the office of sheriff.
At the time of the delivery of the trust deed the title to the land vested in Wm. Holmes, the trustee named, together with the power of executing the trust. But when he ceased to be sheriff of Boone county, the title and power, by the terms of the deed, passed to his successor. The language of the trust deed is, that, “ if we pay or cause to be paid to the said Peter Bunyon, etc., the above sum at the expiration of six months from tMs date, then tMs conveyance to be void, otherwise we authorize the said sheriff or his successors vn office to advertise said land for sale,” etc. The power to execute the trust, in case of default in payment, is expressly conferred upon the sheriff and Ms successors in office.
“Parties may fix their own terms to any contract, and may prescribe the manner in which it may be enforced, and sales made in accordance with the terms-thus fixed and the manner thus prescribed will be good and valid.
We have examined the cases cited by appellant’s counsel in support of their position, and find that none of them hold the doctrine contended for, or conflict with the views above expressed.
TTT. It is urged in argument that the trustee could only sell for “ cash in hand.”
While it is true, generally, that a trustee or sheriff must sell for cash, that he cannot sell on credit, it is also true that when the creditor — the person entitled to the money — is the purchaser, the law does not require that the money shall be paid over to the trustee or sheriff, to be by him immediately returned. A sale under such circumstances extinguishes the debt to the amount of the sum bid, which is all that could be accomplished by the passage of the money from the creditor to the officer, and by the latter back to the former. Such useless ceremony is not required.
The deed of trust authorized the trustee to advertise said land for sale at three public places in the town of Boonsboro thirty days before sale, and then sell,” etc. The sale could not take place legally on the thirtieth day. It was required to be advertised for thirty days before the sale, and then, after advertising for thirty days, he was to sgll, but how many days after the deed of trust does not specify. The sale was on the third day after the same had been advertised for thirty days, and on the day named in the advertisements. In this respect there was a strict compliance with the requirements of the deed of trust.
V. It is next insisted that the recitals in the deed from Redman to the purchaser were not evidence of the facts recited.
VI.; The questions made on the giving and refusal of instructions are the same as those already noticed. The charge of the court was in accord with the foregoing views and there was no error in refusing instructions expressing contrary views.
Affirmed.
Rehearing
A rehearing of this case was granted, upon the petition of appellant, solely on the point therein-made as to the uncertainty in the deed of trust through which defendant’s title is derived.
A careful reconsideration of the question presented leads us to adhere to the conclusions of the opinion already announced.
Appellant insists that, while there are no other lands in Iowa which answer the description in the deed, yet there is nothing in the deed to show that the lands^are situated i/n Iowa.
Appellee insists that, as a matter of fact, there are no-lands in the United States to which the description inapplicable, except in Boone county, Iowa. Not having the means at hand of verifying this statement, we applied to-the commissioner of the general land office for a statement of the fact, and received information that the combination of township and range, as described in this deed, to wit: Township 84, range 26 occurs nowhere in the United States, but in Iowa, north of the base line, and west of the fifth principal meridian. This settles the certainty of the-description beyond doubt or argument.
Affirmed.
