46 Iowa 596 | Iowa | 1877
The register undoubtedly was admissible for the purpose of showing that it did not show an adjournment of the sale from October 3d to November 3d. While it may not be essential to the validity of the sale to show that a record had been made of the adjournment, still, it was eminently proper such an entry should have been made on the register of sales, and the fact that no such entry appeared thereon is a circumstance tending to show that there was no such adjournment. We are also of the opinion that the register was admissible on the question of fraud, but whether it tended materially to sustain
The appellant objects to this instruction, but we think he has no reason to complain. It is fully as favorable to him as he has a right to ask.
II. The following instruction is objected to:
The grounds of objection are: 1. The instruction assumes there was a lost deed, and there was no evidence so tending; and, 2. It was error to charge that possession and claim of title was sufficient. The testimony tended to show that defendants and those under whom they claimed had been in possession for some time under a claim of title. . One Gladdon owned the premises in March, 1855, and the records failed to show that he had parted with such title until after the commencement of this suit. In May, 1855, one Slaydon conveyed the premises to Moore and after several conveyances such title as Slaydon had vested in Miller, to whom Gladdon conveyed in 1876. There was no evidence showing in terms that Glad-don had ever conveyed to Slaydon, but we think the foregoing evidence tended to so show and think the jury were fully warranted in so finding. If there was such a conveyance then the
III. The court instructed the jury as follows:
It is claimed that this instruction is in conflict with Leavitt v. Watson, 37 Iowa, 93. In that case it was held-there was a sale in fact, although it may not have been made in the manner required by law, and that such a sale vested in the purchaser a valid title. The foregoing instruction is based on the theory that the sale in question was private and not public, and that no competition “ was or could have been had,” and that this was brought about by a private bargain between the purchaser and treasurer. That there must be a .public sale was held in Butler v. Delano, 42 Iowa, 350. Now the manner of such public sale is one thing, and whether as a matter of fact there was a public sale is quite another thing. The foregoing instruction is based on the thought that the sale was private and not public, in matter of substance. It will not do to say that a sale at any time and in any manner, that is made privately by collusion between the treasurer and purchaser, constitutes a valid sale. In one sense such a sale might be called a sale in fact. But is not such a one as is contemplated or recognized by the statute. It seems to be assumed by counsel that the only objection to this sale was that it was not made on a legal sale day. In fact counsel seem to assume that it
Aeeirmed.