63 Iowa 295 | Iowa | 1884
Section 3183 of the Code provides that the assignment of errors shall be filed with the clerk, and a copy of the same be served on appellee, or his attorney, ten days before the first day of the trial term. In this case it was served and filed more than ten days before the first day of the term. It was, therefore, in time, although not served or filed until after appellees’ argument was filed. The motion is, therefore, overruled. In Betts v. Glenwood, 52 Iowa, 124, cited by appellees in support of the motion, the facts were entirely different. The assignment of errors which was disregarded in that case was not filed within the time required by tlie statute, and was disregarded for that reason.
Appellant filed with his reply wliat purports to be a certificate of the trial judge, to the effect that no trial was in fact had, and no evidence was introduced, but that the judgment was based upon the admission of plaintiff, in that, having demurred to the answer and cross-petition, lie admitted the well pleaded averments thereof. Appellees have filed a motion to strike this certificate from the files. This motion is sustained. It is not competent to explain or contradict the recital of the record by the certificate of the trial judge. Pearson v. Maxfield, 47 Iowa, 135.
It is alleged in the cross-petition that on the second of July, 1873, an attachment suit was instituted in the Guthrie district court by Phelps & DeLano against J. W. Stewart, and the attachment issued in said cause was levied on said lands, and that, on the 2d of. October following, judgment was rendered in said cause, and the attached property ivas ordered to he sold to satisfy said judgment, and on the 24th of January, 1874, the land was sold on special execution issued on said judgment, Phelps & DeLano, the plaintiff's in execution, being the purchasers; and on the 27th of the same month the sheriff executed a deed under said sale to one R. R. Tingley, and that Tingley, in 1877, gave a quit-claim of the land to one Parshall, who by a like conveyance conveyed it to plaintiff. It is also alleged that the land was sold subject to redemption, and that the sheriff’s deed was executed before the expiration of the time for redemption, and that, for that reason, the deed is void, and does not convey title to the grantor. And the prayer of the cross-petition is that the title to the land be quieted in defendant, and that the cloud east upon the title by the sheriff’s deed and the subsequent conveyances under which plaintiff claims may be removed.
The title to the land was in Stewart when the attachment proceedings were instituted, but. he conveyed to Martin be
We think, however, that the case does not call for a decision of the question whether the sale was subject to redemption or not, for, conceding to defendant what he claims on that question, and conceding also that the deed is invalid, we think he is not entitled, under the allegations of his cross-petition, to have the title to the land quieted in him. The proceedings prior to the sale are in no manner questioned; nor is any question made as to the regularity of the sale; but defendant bases his right to recover solely on the ground that the property was sold subject to redemption, and no deed has been executed by the sheriff since the right to redeem expired. The obvious answer to his |>osition, however, is that, when the right to redeem had expired, all right and interest of the former owner in the ¡premises expired also; and if the deed which was executed did not operate to vest the legal title in
All that remained in Greene, then, (the owner of the land at the time of the sale,) after the expiration of the right to redeem, was the naked legal title to the land, and his quit-claim to defendant transferred that title to him; but betook it subject to the equities of the one who was entitled to a deed from the sheriff under the execution sale; and it does not appear from any averment of the pleadings that the relations or rights of the parties have in any manner been changed since that conveyance. But it is claimed by appellee that it does not apirear that plaintiff ever was entitled to demand a deed from the sheriff.
The answer puts in issue the allegations of the petition, and the decree recites that the court heard the evidence and inspected the pleadings, and determined therefrom that jdaintiff had no interest in the premises, and it was adjudged that his petition be dismissed. But we are satisfied by an examination of the whole record that the case was . in fact decided and the judgment rendered on the demurrer. The record recites that upon the overruling of the demurrer to the crosspetilion plain tiff elected to staud upon the ruling, and, refusing to appear or plead further, a default was entered against him, and judgment dismissing his petition and quieting the title in defendant. The abstract of title attached to plaintiff’s petition shows that he was claiming title to the premises under the same conveyances and proceedings which are set out in the cross-petition, and against which defendant asked relief by that pleading. When the court overruled the demurrer to the cross-petition, it in effect denied every right which plaintiff sought to establish by the proceeding. That ruling determined adversely to plaintiff every question in the case, and, when he elected to stand on the ruling and refused to proceed further, nothing remained to be done, except to enter final judgment against him. And we can not presume that, after having elected to stand on the ruling, plaintiff went through the idle form of introducing evidence to establish a claim which the court had just decided was not valid in law. Nor do we think that the record, by any fair construction, shows that this was done.
Reversed.