Cavender v. Heirs of Smith

5 Iowa 157 | Iowa | 1857

Weight, C. J.

In disposing of this case, we shall confine ourselves to the errors -urged by counsel in their argument, and shall not undertake the examination of such as may be assigned, but not relied upon. Plaintiff claims title, under and by virtue of a sheriff’s sale, made on an execution in favor of Smith, Bros. & Co., and against Jeremiah Smith, the principal, and Samuel Smith, his surety, in the stay bond. It seems that after judgment against Jeremiah Smith, he entered bail to stay execution, the said Samuel becoming his surety. After the expiration of the stay, execution issued .against the principal and surety, and was levied upon the land in dispute, as the property of the said Jeremiah. The clerk, upon taking and filing said stay bond, made no entry of judgment against the surety, nor was there ever any other journal entry of judgment, than the one originally rendered against the principal. The defendants now insist, that this bond extinguished the original judgment — that the execution was not issued upon any judgment, valid in law, and was therefore void. The substance of the argument upon this point, as we understand it, is this: that the original, judgment was against Jeremiah Smith; that the stay bond was not a judgment, but that it required the action of the court to make it complete; and that the statute, providing that such bonds should operate as a judgment confessed, and allowing executions to issue .upon the same, was an assumption of judicial power by the legislature, and vested power in the clerk, which could only be given to the courts.

Many authorities are referred to, for the purpose of showing what it meant by the terms “law of,the land”— “due course of law” — “due process of law;” and an effort is made to demonstrate, that the act which provided that such stay bond should operate as a judgment confessed, was void, for the reason that it denies or takes away a trial in the due course of the law. "We cannot but think that all of the learning, (and there is much of it), upon these subjects, is entirely inapplicable to the case at bar. It will be remembered that it was the land of the principal, and not of the surety, that was sold. As to him, it is admitted there was a valid judgment. The execution contained the usual recitals of judgment against Jeremiah; the entry of stay, and proceeds to direct the sheriff to make the amount thereof from the said Jeremiah, as principal, and said Samuel, as surety. Admitting that so much of said execution as referred to said stay bond, and directed the sheriff to make the money from the said Samuel, as surety, was unwarranted, and gave the officer no power, because, as defendants claim, it was founded upon a proceeding that was void, it would still be difficult to understand, how Jeremiah Smith, the principal, and who owned the land sold, could complain. If Samuel could, it does not follow that Jeremiah could. But aside from this, we have no doubt but that the execution was a valid process against both of the Smiths. The law simply provided, that such a bond should operate as a judgment confessed. The consequence of the act of the surety in entering into such a bond, was fixed by the law, and if he voluntarily entered into it, it certainly would seem clear, that he was thereby estopped from denying the consequences of such voluntary act. It is well said by plaintiff’s counsel, that the position of defendants proves too much ; for unless he is bound by the consequences resulting from voluntarily entering into such a bond, then no party could waive a right to a trial. Such a right would be an unalienable one, an attribute, rather than a privilege that might or might not be claimed or waived.

The next objection we shall notice is, that the deed from the sheriff to the purchaser under the execution, is not properly acknowledged. It seems that soon after the sale, and before tbe expiration of tbe time given by tbe law for redemption, the sheriff made a deed to the purchaser, and again, after the expiration of said time, made a second conveyance. Objections are made to the certificate of acknowledgment attached to each deed. We shall confine our attention to the last one, which is as follows:

"TERRITORY 01? IOWA, DES MOINES COUNTY.

Be it remembered, that on the 28th day of October, A. D. 1813, personally appeared before the undersigned, a Notary Public in and for the county and territory aforesaid, John H. McKenney, sheriff of the county of Des Moines aforesaid, to me personally known to be the same person described in, and whose name is subscribed to, the above instrument of writing, and acknowledged that he executed the same as sheriff as aforesaid, for the uses and purposes therein set forth and contained.

In testimony whereof, I have hereunto set my hand, and affixed my official seal Notarial, at Burlington, this 28th day of October, A D. 1813.

WM. B. EEMET,

[seal.]

Notary Public.’’

The objection urged to this certificate is, that it does not state that, “McKenney was known, &c., to be the person whose name is subscribed to the instrument, as a party thereto”-&emdash;appellants contending that the words “as a party thereto,” are indispensable, by the very terms of the statute. The objection is not tenable. Such a certificate is good, though not in the language of the statute, provided the words used, substantially comply with the object and meaning of the law. Tiffany v. Glover, 3 G. Greene, 387; Reeves & Miller v. Wickersham, 1 Iowa, 413. Substantially, this certificate can mean nothing else than that the person who subscribed the deed, subscribed and acknowledged it “ as a party thereto.” He signs the deed “John H. McKenney, sheriff of DesMoines county, I. T.,” and the officer certifies that “ John H. McKenney, sheriff of the county of DesMoines aforesaid,” whose name is subscribed to the above instrument, “appeared before him, and acknowledged that he executed the same as sheriff as aforesaid.” Can there reasonably be any two constructions given to this language? Can any person doubt, but that McKenney acknowledged and executed this deed, as a party thereto, and that as such party, he appeared before the certifying officer ? To our minds, there is no more doubt, than if the identical words of the statute had been used.

A third error is based upon these facts: At -the time of the judgment, execution and sale, Jeremiah Smith held the land by purchase from the United States' — having as the evidence of his title, the duplicate of the Register of the proper land office. After this, he obtained the patent in his own name; and it is urged now, that by such patent, the legal title to the land was in Smith at the commencement of this suit, and as such legal title must in this action prevail over all others, plaintiff cannot recover. It would appear to be a sufficient answer to this objection, to say that this very question was before this court in this same case, in May, 1851, and ruled against the position assumed by appellants. 3 G. Greene, 349. We think the question is fully and sufficiently examined in that case, and concurring as we do, most unhesitatingly, in the disposition of it there made, shall not again examine it at length. It is proper to add, however, that appellants insist that the question now arises between different parties, claiming under different titles, and that it is not in fact, the same question previously determined.

This position is based upon the fact, that subsequent to the judgment on which this land was sold, a second judgment was obtained against Smith, in favor of one Purcell, upon which, after the issuing of the patent, an execution was issued, and said land sold to Whitsel, who conveyed to one of the defendants herein. And the argument is, that said defendant holds under said second sale, which was made after the legal title (by the patent) vested in Smith,' and not as one of the heirs of the judgment debtor. What difference this can make, we do not see. If, as was held in the former case, “ by his purchase, Smith acquired all the property which the United States had in this land; if, as there stated, the sale was without reservation, and the right acquired thereunder, was unconditional and absolute ; if all the equity, and in fact all the legal title, passed from the government to the purchaser; if the government retained only the formal, technical legal title, in trust for the purchaser, until the patent issued; then it is difficult to understand, why the purchaser under the first sale, did not obtain a good title; or how, after that, any interest remained in Smith, or could be conferred upon him by the patent, which could be reached by a subsequent judgment and sale. And see Arnold v. Grimes, 2 Iowa, 1.

The original judgment was rendered against Jeremiah Smith, on February 17, 1840. On May 15, 1841, the premises in dispute were sold under the execution, to the grantor of plaintiff. 'On the 18th of June next after, the sheriff executed to said grantor a deed, which was filed for record, August 18th of the same year. On October 28th, 1843, the sheriff made a second deed to Grimes, (plaintiff’s grantor), which was filed for record on the same day. Grimes conveyed to plaintiff, May 3d, 1844, and this deed was filed for record on the next day. On May 29th, 1841, one Pursell recovered judgment in the same court, against Jeremiah Smith. An execution issued on this judgment, June 19th, 1845 ; and on the 16th of August of the same year, the premises in dispute were sold thereunder to one Whitsel, who obtained a deed from the sheriff, November 24th, 1846, and filed the same for record, January 23d, 1847. On the 10th of December 1846, a second execution was issued on said judgment, under which, on the 25th January, 1847, the interest of said Smith in the same land, was again sold to said Whitsel, who took a second deed, May 8th, 1848, which was filed for record on the. 12th of the same month. On March 22d, 1852, Whitsel and wife conveyed all their interest in said land to one of the defendants, George F. Smith.

The judgment in favor of Pursell, the executions issued thereon, the deed to Whitsel, and the one from Whitsel to Smith, being offered in evidence by defendants, were objected to by plaintiff, and the objection sustained ; and the ruling thereon, presents the next question brought to our attention by counsel. And their argument, briefly stated, is this, that although Grimes purchased two weeks before the date of the Purcell judgment, yet the deed was not made to him until after the lien of said judgment attached, and it was not recorded until August 18th,' 1811. Thus the judgment, (says counsel), under which we hold, overreached Grimes’ unrecorded purchase, which remained in parol from the 15th of May to the 18th of June, 1811; and again, “the lien of the judgment-under which the defense claims, attached on the 29th of May, 1811, and continued until the sale to Whitsel, so that such subsequent purchase carries the title to Whitsel as against the prior purchase of Grimes, by mere force of our judgment lien.” The argument is unsound. The plaintiff claims under a judgment dated February 17th, 1810. Defendants claim under one of May 29th, 1811. May 15th, 1811, the premises were sold on the execution under which plaintiff claims. On August 16th, 1815, the first sale was made under the Purcell judgment. The first deed to Grimes was made June 18th, 1811, and the second one, October 25th, 1813. The first deed to Whitsel was made November 21th, 1816, and the second one, May 8th, 1818. Plaintiff took his deed from Grimes, May 31st, 1811, and George .E. procured title from Whitsel, March 22d, 1852. And thus we see, that the judgment under which plaintiff claims, was rendered prior to that under which defendant claims, and that plaintiff’s grantor purchased prior to the rendition of the Purcell judgment. It also appears, that nearly two years before there had been any levy or sale under the second judgment, both of the deeds had been made to Grimes, arid the same filed for record; and that before such levy, Grimes had conveyed to plaintiff. Now, if the lien of the judgment under which defendants claim, attached on the 29th of May, 1811, why did not the lien under which plaintiff claims, attach’ Eebruary 17th, 1810? And especially has this inquiry pertinency and force, when we consider that the sale under the first judgment, toolc place prior to the rendition of the second one; and that both of the deeds to Grimes, as well as the one from Grimes to plaintiff, were made and recorded long before there had been any sale under the second judgment. The plaintiff claiming under the senior judgment, his title would overreach that obtained under the junior one, even though defendants’ grantor had first purchased. Marshall v. McLean, 3 G. Greene, 363. If so, much more clearly, must plaintiff’s title prevail, where he claims under a senior judgment — a senior levy — a senior sale— and a senior deed.

After the commencement of this'suit, and after issue joined, Jeremiah Smith departed this life. At the next term thereafter, counsel for defendants suggested this fact, and on motion of plaintiff’s attorney, it was ordered that the widow and heirs of said Jeremiah, (naming them), should be substituted as defendants, “ and that they be notified of the pendency of the same. ” This order was made at the May term, 1852, at which time, as shown by the record, five of the heirs were minors. No notice was ever issued; nor is there anything to show, that said heirs were ever notified of the pendency of said cause. On the 26th of April, 1853, this entry appears:

“John Cavender vs. Ellen M. Smith, widow, and "Win. “ IT. Smith, Geo. E. Smith, and others, children andheirs of “Jeremiah Smith, deceased. This day this cause came on “ for trial on the issue joined by the parties, and also came “ a jury, to wit:” &c.

A trial was had, which resulted in a verdict and judgment for defendants. On appeal, the judgment below was reversed, and a procedendo issued, entitling the case, as it had been throughout in this court, as that of “John Cavender vs. the Heirs of Jeremiah Smith.” In the District Court, at the April term, 1856, this entry appears: “ On motion of defendant’s attorney, leave is given him to amend answer.” No such amendments, however, appear to have been made. At the November term, 1856, of the district court, the judgment now appealed from was rendered, the journal entry of the trial being as follows:

“ John Cavender vs. Ellen 1L Smith and others, heirs of “Jeremiah Smith, deceased. This day came the parties “by their attorneys, and to try the issue joined, a jury was “called, &c.”

The case appears to have been fully tried; to have been argued by counsel for the respective parties; and the verdict being for plaintiff, defendants moved an arrest of judgment and for a new trial, for the following among other causes: “ Because it appears from the record, that a por“tion of said defendants were minors, and no guardian ad “ litem was appointed by the court, to answer and defend “ for them, and no answer was in, or defence made. ” This motion was overruled, and this presents the next objection made by counsel to the action of the court below. It is most manifest that after the suggestion of the death of the ancestor, in all the proceedings, the heirs were treated as in corn’t, and defending said cause. And it is just as evident, that said minor heirs never were notified; that they never did answer or plead; and that no guardian ad litem was ever appointed for them. "Whether any guardian was ever appointed for them in the county court, does not appear. Can they under the circumstances, after verdict, make the objection stated? We conclude that they can, and that the judgment should have been arrested and a new trial granted.

At common lay, infants were required to sue and defend by guardian. By the statute of Westm. 16, 48 & 2 0. 15, they were authorized to sue byproehien a/nvi. These statutes, however, gave only an accumulative remedy; for the infant might still sue, either by guardian or by next friend. Co. Lit., 135, b. note, 220; Miles Boyden, 3 Pick., 213; 3 Bacon’s Ab., 616. The code simply recognizes this common law rule, and provides the same cumulative remedy —it being therein declared, that minors may sue and defend by guardian; that those who have no guardian, may sue by next friend; and that, the court may appoint a guardian ad litem, to defend for a minor, who has no other guardian. Sections 1688, 1689. In this case, the record shows affirmatively that, at the time of the death of the father, five of the defendants, (his children and heirs,) were minors. They were admitted to be minors by plaintiff at the May term, 1851, when he moved that they be notified of the pendency of said cause. They were never notified; they never appeared by guardian; nor was there even a next friend appointed to defend for them. To say that such minors should be concluded by a trial, thus conducted, we think, would be to establish a rule dangerous in the extreme — a rule which would be at variance with all of our settled notions of law, as applied to the rights of infant parties in a legal proceeding.

We do not believe that any case can be found, where the property of infants has been disposed of under the circumstances herein disclosed. The infant is supposed to be incapable of guarding his own interests, and it is the duty of the court, before it divests him of his estate, to be satisfied that he has had a full opportunity to have his day in court, by a proper and suitable guardian; and to see, notwithstanding any admission of facts, even by such guardian, that his rights are not sacrificed. Walton v. Conlon, 1 McLean, 120; Greenup v. Bacon, 1 Mon., 108; Austin v. Charlestown Female Seminary, 8 Met., 196; Bloom v. Bardick, 1 Hill, 131; The Bank of U. S. v. Ritchie, 8 Peters, 128. The minor may be sued in his own name, but he cannot appear by attorney, but only by guardian, admitted, or appointed by the court. Clarke v. Gilmanton, 12 N. H., 515; Alderman v. Tinell, 8 Johns., 418; Valentine v. Cooley, 1 Meigs, 613; Knapp v. Crosby, 1 Mass., 479; Bank v. Ritchie, 8 Peters, 128; Mercer v. Watson, 1 Watts, 330; Comstock v. Carr, 6 Wend., 526; Starbird v. Moore, 21 Vermont, 530; 3 Bacon’s Ab., 616; Mackey v. Grey, 2 Johns., 192.

It is claimed by counsel, however, that there is nothing to show that said five defendants were minors at the time of the trial; and that they may have attained their majority before that time. In the first place, it may be answered to this, that the material inquiry is, what was their age at the time they appeared and plead, (if there was such appearance,) and not at the time of the rendition of the judgment. And if it is claimed that a party, by appearing and defending a cause, after attaining his full age, thereby waives any error resulting from appearing and pleading in the first instance by attorney, the answer in this case, is that the record does not show that these defendants had, before trial and judgment, attained their majority. We cannot presume that they were of full age, at the time of the trial. By the record, they appear to be minors. We will, certainly, not allow this to be contradicted by a presixmption. But it is further urged, that the remedy of defendants is by writ of error coram nobis. Without determining whether they might not have this error corrected in that way, we are quite clear that they may urge the objection in this court. The record discloses the minority of these parties, and the fact that there was a trial, without notifying them of the pendency of said cause, or without appointing any person to defend for them. Under such circumstances, whether an error in fact or law, this court will correct it. If the record did not disclose their minority, and it was claimed that there had been a trial, and the rights of these parties had been settled, when they were incajDable of defending themselves, it might, with propriety, be said, under our practice, that such objection should be made in the District Court, by application for the writ of error coram nobis, and not in this court.

Finally, it is said, that if the minor cannot appear in the court below, neither can he prosecute a -writ of error or appeal, by attorney A sufficient reply to this is, that at least the adult heirs can prosecute this appeal, and the cause being before us, it is om duty to see that the interests of the infant defendants are properly protected. It is a matter of every day practice, almost, for courts to guard, by their orders and decrees, the .fights of the ward, even where a guardian appears ; and much more is it their duty to do so, where his estate is sought to be divested, withdut any proper appearance on his part. It is the duty of every court to watch, with jealous care, the interests of those parties who, in legal contemplation, are incapable of asserting their just rights.

The only remaining question is, shall the judgment be reversed, as to all of said defendants ? or, only as to said minors?. The general rule, we believe to be, that a judgment is an entirety, and if reversed as to one, it will be as to all the parties appealing. Cruikshank v. Gardner, 2 Hill, 333; Sergeant v. French, 10 N. H., 444; Richards et al v. Walton, 12 Johns., 181. And yet, there are cases in which the judgment below may be affirmed as to part of the appellants, and reversed as to the others. This may be done, for instance, where the judgments are distinct. But where, as in the case before u's, the judgment is entire, the affirmance or reversal must be total. Bradshaw v. Callaghan, 8 Johns., 566; Richards v. Walton, supra; Arnold v. Sandford, 14 Johns., 417. These defendants claim title from a common source. If the plaintiff succeeds as to one, he must as to all. If he fails against one, he must against all. ~We cannot but think, therefore, that to affirm the judgment as to the adult heirs, and reverse it, and order a new trial as to the infant defendants, would be, both legally and logically, inconsistent.

Judgment reversed.