212 N.W. 332 | Iowa | 1927
Appellants purchased a certain lot from the appellees under written contract, paying a certain amount in cash, and agreeing to pay the balance in monthly installments. The failure to pay the monthly installments and the taxes authorized a forfeiture of the contract. A ninety-day notice was served upon the appellants. Subsequently, a thirty-day notice of forfeiture was served, and following this, in due time, a three-day notice to quit. Thereafter, this action was instituted. The answer of the appellants admitted the execution of the contract, and default on their part, and that alleged notices were served on them, but contended that the notices were defective, and that the service was improper.
I. Appellants contend that the notices of forfeiture were insufficient because the return of service showed that copies of *18 1. VENDOR AND said notices were served on the appellants, and PURCHASER: that the originals of said notices were not in modification fact delivered to the appellants. The return was or indorsed upon the originals. No question is made rescission as to the sufficiency of the substance of the of contract: notices. The manner of the service of such a forfeiture: notice is set forth in the statute, Section notice and 12391, Code of 1924, which is as follows: service.
"Said notice may be served personally or by publication, on the same conditions and in the same manner as is provided for the service of original notices, except that when the notice is served by publication no affidavit therefor shall be required before publication. Service by publication shall be deemed complete on the day of the last publication."
The manner of service, by the terms of the statute, is to be the same as that provided by statute for the service of original notices. The method of service of an original notice is provided by Section 11060, Code of 1924, and the portion of the same pertinent to this case is as follows:
"By reading it to the defendant or offering to do so in case he neglects or refuses to hear it read, and in either case by delivering him personally a copy thereof, or, if he refuses to receive it, offering to do so."
The manner of return of personal service is provided for in the statute, Section 11061, Code of 1924, and is as follows:
"If served personally, the return must state the time, manner, and place of making the service, and that a copy was delivered to defendant, or offered to be delivered. If made by leaving a copy with the family, it must state at whose house the same was left, and that it was the usual place of residence of the defendant, and the township, town, or city in which the house was situated, the name of the person with whom the same was left, or a sufficient reason for omitting to do so, and that such person was over fourteen years of age and was a member of the family."
The record discloses an exact compliance with the statutes as to the manner of service and the return. Appellants' contention is that, under Section 12393, Code of 1924, service of notice of forfeiture of a contract for the sale of real estate must be made by delivery of the original to the party served. Said section is as follows: *19
"If the terms and conditions as to which there is default are not performed within said thirty days, or ninety days as the case may be, the party serving said notice or causing the same to be served, may file for record in the office of the county recorder a copy of the notice aforesaid with proofs of service attached or indorsed thereon (and, in case of service by publication, his personal affidavit that personal service could not be made within this state), and when so filed and recorded, the said record shall be constructive notice to all parties of the due forfeiture and cancellation of said contract."
A reading of said section makes it perfectly obvious that the same has nothing whatever to do with the manner of the service of the notice of forfeiture, and is wholly consistent with Section 12391, providing for the service of said notice. The statute neither requires that the original of the notice shall be delivered to the defendant nor that the original shall be filed in the office of the county recorder for the purpose of constituting constructive notice of the fact of the forfeiture. Appellants' contention at this point is without merit.
II. Appellants' further contention is that the notices were insufficient because they purported on their 2. VENDOR AND face to have been signed by the attorney for PURCHASER: the appellees. The abstract discloses that the modification notices were signed as follows: "W.W. Cassady or and Eola Cassady, by Ralph Smith, their rescission attorney." The evidence in the case discloses of contract: that the attorney who signed the notices was the forfeiture: agent and attorney for the appellees at the notice: time, and had been employed as such agent and sufficient attorney, and that he prepared all of said signing. notices after such employment. Code Section 12393, supra, does not in terms require that the notice of forfeiture must be signed in person by the parties. Section 10922, Code of 1924, in part is as follows:
"An attorney and counselor has power:
"1. To execute in the name of his client a bond, or other written instrument, necessary and proper for the prosecution of an action or proceeding about to be or already commenced, or for the prosecution or defense of any right growing out of an action, proceeding, or final judgment rendered therein."
The record brings the case squarely within the provisions of this section of the statute. The uncontradicted evidence shows *20
that, before any of the notices in question were prepared and served, the attorney had been employed to do the necessary and proper things for the prosecution of a proceeding about to be commenced. It is to be observed, also, that the notices were signed in the name of the appellees, by their attorney. There is no question, under the record, of the authority of the attorney to sign the notices in this manner. As bearing on the question involved, see Goddard v. Cunningham,
We find no merit in any of the matters urged by the appellants, and the order of the district court is — Affirmed.
EVANS, C.J., and STEVENS and VERMILION, JJ., concur.
