Cooley v. Wilson

42 Iowa 425 | Iowa | 1876

Rothrock, J.

I. The evidence in this case satisfactorily establishes the following state of facts: The defendant, Wilson, was the owner of the property described in the sheriff’s return of the levy and in the deeds. The sheriff intended to, and did in fact, sell the property of the defendant, though by an erroneous description. The defendant knew that the sale was on executions directed against his property, and he says in his testimony, L was close Toy so I could hear the sale, and the sheriff announced at the sale, on inquiry being made, that he was selling defendant’s store and lot. The plaintiff, although attorney for the execution creditors, was ignorant of the erroneous description, and did not ascertain the mistake until after the year for redemption had expired. The defendant knew before the sale that the notice served on him, and as published in the newspaper, did not describe his property. There was no collusion between the plaintiff and the sheriff, and no fraud on plaintiff’s part. The record shows that he paid the purchase money to the sheriff.

i. jtoiciax. •larfties1: imiocent purchaser. Under this state of facts, can the defendant maintain this equitable defense in the nature of a erosspetition in equity to set aside the sheriff’s deeds? „ . . ,. , . , ,. ._ We are ot opinion that he cannot. The failure to advertise will not invalidate a sale. Revision, See. '3312; Code, Sec. 3081. If the defendant conceived that the notice containing an erroneous description was no notice, he could have had the sale set aside by making application in time. Revision, Sec. 3318; Code, Sec. 3087. The statute requiring notice of the sale to be given is directory, and in the absence of fraud a failure of the officer to follow the statute will not render the sale and deed void. Cavender v. Heirs of Smith, 1 Iowa, 306. A purchaser at sheriff’s sale has the right to rely upon the judgment, levy, and deed; these being valid an innocent purchaser cannot be affected by other irregularities. Shaffer v. Bolander, 4 G. Greene, 201; Burton v. Emerson, Id., 393; Hopping v. Burnham, 2 G. Greene, 39.

2-_. notice: equity. 3.--: • — ■: attorney. ‘ ‘ II. The plaintiff was attorney for the judgment creditors, and a judgment creditor who purchases is protected at law against those things of which he had no notice at the time of purchase; and this rule obtains in equity unless there are -equities of so strong and persuasive a nature as to prevent its application; but this, if relied -on, must be alleged and proved. Evans v. McGlasson, 18 Iowa, 150; Holloway v. Plattner, 20 Iowa, 121; Gower v. Doheney, 33 Iowa, 36; Butterfield v. Walsh, 36 Iowa, 534. The defendant in this case alleges and proves no equities. Tie shows the irregularities only, and there is no reason why the above rules should not apply when the attorney of the judgment creditor is the purchaser in good faith.

4. - — : error tfonfpraetice. HI. The defendant is not in a position to urge these irregularities. He was aware of them before the sale; was present at the sale and made no objection thereto; he knew the sheriff was actually selling his property; he made no motion in the court below to set aside the sale, but delayed until title under the sheriff’s deed is asserted, and-then merely complains of these irregularities without offering to refund the purchase money. If he desired to correct the record of the proceedings of the sheriff, or to take advantage of the errors complained of, he should have done so by motion in the court to which the executions were returnable.

Eeversed.