16 Iowa 10 | Iowa | 1864
I. On the trial in the District Court, the plaintiff offered in evidence the book from the Recorder’s office entitled “ Copies of Óriginal Entries ” of land, (for the provisions of law concerning which, see Revision of 1860, §§ 4048,4049,) to prove that Fayette Phillips entered certain parcels of the land in controversy. It is conceded that the book contained an entry to that effect. To the reception of this testimony, the defendant objected, on the ground that it was secondary evidence, and before it could be properly received, the plaintiff must show that the primary and best evidence, viz.: the patent,was lost or beyond the control of the party offering the evidence. The Court overruled the objection and admitted the testimony to which the defendant excepted. Whether this ruling of the Court was, at the time it was made, correct, became wholly immaterial in the subsequent stages of the cause, and when it was afterwards made one of the grounds of a motion for a new trial, it ought to have been, as it was, even on the assumption of its incorrectness, disregarded. ' The whole evidence is before us, and from it, it is indisputably clear that both the plaintiff and defendant, as will be more fully shown hereafter, claimed to derive title from the said Fayette Phillips as a common grantor and from no other source. The plaintiff claimed title under the foreclosure of a mortgage from Phillips to Randall, and by Randall assigned to Wahl, executed and recorded September 22d, 1857, and designated in this opinion as the Wahl mortgage. The defendant claimed title under the separate foreclosure of another mortgage, subsequent in date to the Wahl mortgage, executed by Phillips to one Smith Brayton. When these facts transpired the plaintiff was relieved of the neces
II. On the trial, the plaintiff read in evidence the decree of the Delaware District Court, at the April Term, 1862, foreclosing the Randall-Wahl mortgage, dated, as before stated, on the 22d day of September,, 1857. This decree will be hereafter alluded to in the consideration of other questions arising m the present cause. The plaintiff then offered in evidence the special execution issued on the said decree, and upon which the land in dispute was sold, and at which sale the plaintiff (Cooley) became the purchaser, and received the sheriff’s deed. The defendant objected to the admission of this execution as evidence, because the same “ was defective in not requiring the Sheriff to make any money on the said decree.” The execution recites that: “Whereas, on the 12th day of April, 1862, a decree for the sum of fourteen hundred and sixteen dollars [we italicize the word “hundred" above, being the word to which the next assignment of errors related] “ was rendered in the District Court of said [Delaware] county in favor of B. A. Wahl against Fayette Phillips, in the ease of B. A. Wahl v. Fayette Phillips, Smith Brayton et al., at the April Term of said Court 1862,” “and whereas, the northeast quarter,” &c., [here describing the land correctly] “was ordered to be sold to satisfy the decree aforesaid, interest and costs ; And it appearing from the records of said court that there is still due to the said B. A. Wahl, on said decree, the sum of fourteen hundred and sixteen dollars with
We cannot agree with the counsel for the appellant, that this writ did not “ require the sheriff to make any money on the said decree; ” that it was void, and consequently the sale thereunder to the plaintiff would confer no title. The decree, the time at which, and the court by which it was rendered, the names of the parties, the land to be sold, are not only intelligibly, but fully and accurately described, The amount of the decree and the amount still due thereon were specifically stated in the writ twice, and it would seem also indorsed upon it by the clerk. Taken as a whole the blank as to the amount in the command, is readily supplied. Under these circumstances the mere misprision of the clerk to fill this blank and repeat the amount a third time would not invalidate a title acquired at a sale under the writ. The writ was in substantial compliance with § 3251 of the ^Revision of 1860, conceding, for the argument, that the requirements of this section are imperative and not simply directory. The last clause of this section is as follows: “ If the suit be against the property of the j udgment debtor, it shall require the sheriff to satisfy the judgment and interest out of the property of the debtor subject to execution.” Errors of this nature do not vitiate or avoid titles acquired under the writ, especially when insisted on by third persons and collaterally. Peck v. Tiffany, 2 Com., 451; Jackson v. Streeter, 5 Cow., 529 ; Humphrey v. Beeson, 1 G. Greene, 214; Sprott v. Reid, 3 Id., 489; Dean v. Goddard, 13 Iowa, 292; Perkins v. Dibble, 10 Ohio, 434,
III. The defendant offered to prove that the execution above described “ had been interlined after the same had been issued and after the levy had been made thereon by the sheriff, by the insertion of. the word 1 hundred1 where the same first occurs in the' said writ, without any order or direction from the Judge or Court.” This testimony was excluded, and this is the next error assigned by the appellant. The proposal was not accompanied by any offer to show that the plaintiff in the writ (Wahl), or his assignee (Cooley, the present plaintiff), made the alteration, or knew of it; or that it wrought any injury, or was made with any intent to defraud.' On the contrary, for aught that appears, it might have been made by a stranger, or what is more probable, by the clerk himself, without plaintiff’s knowledge or consent. Add to these circumstances the fact that the word alleged to have been inserted was immaterial, as the same amount is stated in a subsequent portion of the writ, as to which it is not claimed that there was any alteration, and it is manifest that the proposed evidence was properly rejected. See Merrick v. Wallace, 19 Ill., 486, where it was held that an alteration of a public record could not affect an innocent party. Keyes v. Chapman, 5 Conn., 169; Roberts v. Church, 17 Id., 142. The case of Brier v. Woodbury, 1 Pick., 362, cited by appellant, does not militate with the above view. This was a case where the execution was altered in a most material respect by an ex-deputy sheriff, who being a constable at the time he received the writ addressed to him as deputy sheriff, fraudulently and without consent, inserted
IV. The instructions of the Court given and refused, present questions as to the validity, nature and conclusiveness of the decrees in the two separate foreclosures against Fayette Phillips et al., the plaintiff being the purchaser at the Wahl foreclosure, and the defendant at the Smith-Bray-ton foreclosure. The Smith Brayton mortgage was the junior mortgage, and suit was brought by him on the 8th of February, 1859, to foreclose the same. Phillips, the mortgagor, and others were made parties, and the decree recites that Wahl was a party. It is claimed by the appellee that Wahl was not a party, inasmuch as he was not personally served, made no appearance, and was materially misnamed in the printed notice of publication, being named Wahe instead of Wahl. The printed notice not being before us, we are not able to determine the validity of this objection in point of fact, and in the view we take of the case, the question is not of controlling materiality. From the record before us, it appears that on the 6th day of September, 1859, Smith Brayton obtained his decree of foreclosure against Phillips as mortgagor and Wahl and others as incumbrancers. His petition is not before us, so that we can see what it alleged as to the Wahl interest in the mortgaged premises. But by the decree, which was by default, it i&, inter alia, ordered “ that the said defendants and all persons claiming or to claim any interest in said lands from, or under them, and all persons having a lien subsequent to said mortgage [of Smith Brayton] by judgment or decree, and all other persons claiming any interest in said premises subsequent to the recording of said mortgage, &c., be forever barred,” &c. . . .
We have now reached the question, whether this decree was equally binding, or binding at all on the appellant, he not being a party thereto. He purchased pendente lite and is constructively bound. At the date of his purchase not only had the Wahl foreclosure proceedings been commenced, but Smith Brayton (under whom the appellant claims) had answered therein. Under these circumstances the appellant was not a necessary party upon the general principles of equity practice. “Incumbrancers who become such pendente lite, are not deemed necessary parties, ■ although they are bound by the decree; for they can claim nothing except what belonged to the person under whom they assert title, since they purchase with constructive notice; and there would be no end to suits if a mortgagor might, by new incumbrances, created pendente lite, require all such incumbrancers to be made parties.” Story’s Eq. Plead., § 194. Grounded upon the same reasons, the same rule would apply to purchasers pendente lite. We may remark, in passing, that, by the Revision, which, however, did not go into effect till September, 1860, the doctrine of lis pendens has even been enlarged; and it is enacted that when a petition is filed affecting ■ real estate, and “ while it is pending; no interest can be acquired by third persons in the subject matter thereof as against the plaintiff’s title.” §§ 2842, 2843. Coincident with the views' above expressed were those of the learned judge who tried th# cause below, as shown by his directions to the jury;'
Judgment affirmed.