Brown v. Barngrover

82 Iowa 204 | Iowa | 1891

Given, J.

I. We first inquire as to the validity •of the judgment confessed by Isabella Garrón and 1. judgments recordí val™-: ity-others in favor of C. Aultman & Co. The sworn statement upon which the judgment was entered shows that the parties making it were justly indebted to C. Aultman & Co., and states that the indebtedness arose as follows : “ On or about the twenty-sixth-day of July, 1881, the said Isabella Gar-rón, George Garrón, N. It. Biley and J. A. Scroggie, made, executed and delivered to the said C. Aultman & Co. their three certain promissory notes in writing, words and figures as shown by copies of said notes hereto attached, marked Exhibits - 4 A,’ £B’ and ‘C,’ respectively, and made a part hereof.” The notes recite that they were given “for value received on one Sweepstakes separator.” This was a sufficient statement of the facts out of which the indebtedness arose. See Miller v. Clarice, 37 Iowa, 328, and cases cited therein.

II. This judgment was not entered in the record •of the ordinary proceedings of the court, but was entered ,2__._. confirmation, in what is known as £< record of judgments py confession ” that form a part of the records of the court. It is a common, if not universal, practice in this state to keep records other than the ordinary journals of the court, in which judgments by confession and by default are entered, and is sustained by Carr v. Boswith, 72 Iowa, 530. The records may be so kept, and thus entering this judgment was the making of a proper record thereof.

This judgment was entered January 28, 1884, and ■confirmed on .the nineteenth day of October, 1889, of .said court, at the September term thereof. While this confirmation was long after tlie entry of tile judgment, and probably in pursuance of the prayer of the defendant Haddock in his answer, no reason appears why the court might not’ then confirm the judgment. Vanfleet v. Phillips, 11 Iowa, 560. We are of the opinion that the judgment was properly confessed, recorded and approved, and is a valid judgment.

III. By the written contract, plaintiff is entitled to have the land free from all incumbrances except the 3. express deuce: judgment: lien. eighteen-hundred-dollar mortgage which he assumed. It is claimed that the judgruent in favor of C. Aultman & Co., though valid, did not become a lien upon the land, because Isabella Garrón, the judgment debtor, through whom the lien is claimed, only held the naked legal title in trust for William Garrón, the' real owner. The testimony of George Garrón and of Isabella Garrón, taken subject to objection, tends to show that William Garrón had made a sale of the land to a party who refused to accept a quitclaim deed; that William Garrón, being-unwilling to give a warranty, quitclaimed to Isabella that she might make a warranty deed to the purchaser; that this sale fell through, and the title remained in Isabella; that she, at the instance of William, gave the eighteen-hundred-dollar mortgage, and thereafter recon-veyed to him. The judgment, under notice, was entered while the title stood in Isabella. This evidence clearly tends to establish an express trust, but as said in Andrew v. Concannon, 76 Iowa, 253: “This cannot be done by parol. Such a trust must be evidenced in the same manner as conveyances of real estate.”- Code, secs. 193, 194. We think the evidence was inadmissible, and, as there is no other evidence of the trust alleged, we must hold that the judgment became a lien upon the land as the property of Isabella Garrón.

IY. The letter received by defendant, J. E. Barn-grover, and relied upon as an estoppel, was received by i estoppel-evidence. him s0011 after its date, July 13, 1888, and says: “We have received payment in full for this judgment, and it has been canceled from our books.” This is not an acknowledgment of payment in full of the judgment, but that they had “received payment in full for this judgment;” a statement that is shown to be true by the fact that in Januáry previous the company had sold and assigned the judgment to defendant Haddock. It is true that upon casual reading one might infer that the judgment had been paid, and it is probable that the plaintiff at one time so believed, but it is evident that J. E. Barngrover knew that it had not been paid, but was assigned to and claimed by defendant Haddock, a fact which he did not disclose to the plaintiff. The plaintiff, though knowing of the letter, questioned whether the title was clear, and upon the refusal of the clerk to certify to the abstract, insisted upon holding the deeds in escrow until the fact was ascertained. There is no pretense that the judgment had been paid, and we have seen that it was a valid judgment, a lien upon the land, and that the plaintiff' by his contract was entitled to have the land free from that lien. These conclusions render any further discussion of the facts unnecessary, as it is evident that the plaintiff is entitled to relief.

V. No answer was made to the cross-claim of defendant, M. G-. Barngrover; wherefore the appellant 5. pleading ana cross-pek-non: relief. claims that it should be taken as confessed,, and he be allowed the sum claimed. That ciajm arose from, and was a part of, the transaction by which the exchange of properties was made, and was within the issues joined, and proper to be considered if no cross-claim had been pleaded.

Questions made as to the record were all obviated by filing a transcript. We have not noticed each finding in the decree, but upon examination thereof, and of the whole record, conclude that the decree of the district court should be abbibmed.