18 Iowa 252 | Iowa | 1865
Plaintiff claims title under a judgment and execution in favor of one Winchester, and against the defendant, William F. Ayres. This judgment was rendered in June, 1854. The execution was issued December 2, 1854, the levy made on the land in controversy January 10th, and the sale took place February 24th, 1855. Bates, the attorney of Winchester, bought the land in his own name, and assigned the certificate to plaintiff, who, iu due time, obtained a sheriff’s deed.
Defendants insist that this sale was irregular, and conveyed no title, for various reasons set up in their answer; as that a prior execution had been issued and levied upon another tract of land, which had not been sold, nor had the
(The case of McCabe v. McCabe, at the present term, refers to the distinction between a dismissal without prejudice, and one absolute after a hearing upon the merits.) If the former suit had been discontinued or disposed of on some technical ground, or because the court had not jurisdiction, or if it was anything short of a determination upon the merits, the authorities cited might have some application. Nor is there any more force in the proposition that the parties are not the same. The present plaintiff and defendant (William F. Ayres) were the real parties to the'former litigation; McHenry and Bates were the nominal parlies merely. But if more than nominal, as relief was there denied, the present defendant (then plaintiff), absolutely aud after a hearing upon the merits, and as this denial inured to the benefit of the present plaintiff) defendant cannot deny the conclusiveness of such adjudication, from the fact that other parties were also successful in the litigation which he thus initiated. It is not a case, thus far, where the parties are different under the rule insisted upon by defendants. And as to the claim that the wife of Ayres is a party to this proceeding, and was not to the former, defendant’s position is equally untenable. She does not claim the property as her separate estate: the title, if in either, is in the husband. If she has any interest, she derives it through the husband (we speak now of the property on the assumption that it was not homestead at the time of the sale); and it is, therefore, very clear that the wife would be bound, equally with the husband, by the former adjudication. No case can be found, as we believe, holding otherwise. Upon this subject generally, without referring to" the authorities cited by counsel and others in detail, see Neaffie v. Neaffie, 7 Johns. Ch., 1; Campbell v. Ayres, 1 Iowa, 257; 1 Greenleaf’s Ev., §§ 522, 3, 189, 19, 20; Carver v. Jackson, 4 Pet., 85; Case v.
We remark, in conclusion, on this branch of the case, that there is no foundation for the proposition, that the record of the former adjudication is not complete, and, therefore, not admissible. We understand that “ the whole record,” in the language of Chief Baron Comtns, “ which concerns the matter in question,” is produced. Thus viewing this part of the case, we need not examine into the effect of the other adj udication, relied upon by appellee, which relates to the denial of defendants’ motion to set aside the sale. Being estopped by this, the other is of no consequence.
Affirmed,