101 Iowa 202 | Iowa | 1897
The judgment and decree entered in the main case, were affirmed by this court, and the case is reported in 92 Iowa, 100 (60 N. W. Rep. 245). The original decree provided, that “plaintiffs pay to the clerk of this court, for the benefit of said McCracken, the said sum of four hundred and sixty-four dollars and fifty-four cents, with interest thereon at six per cent., from this date; and, in default of such payment, defendant may have an execution against said premises, and same to be sold to satisfy said amount, superior in lien to that of plaintiffs under said mortgage. It is also ordered that, in case plaintiffs pay said sum to said clerk, in redemption from said tax sale, before the issuance of execution therefor, the plaintiff shall, upon such payment, be entitled to, and are thereafter subrogated to all rights of the defendant McCracken, therein and thereto; and, if paid after
On the thirtieth day of April, 1895, appellee filed a motion to set aside the sale for the following reasons: (1) Because of mistake of the clerk in entering up the judgment; (2) because, pending the appeal of the original cause in this court, a receiver was appointed to take charge of the property involved, and to rent and receive the profits-thereof, who had not reported, and who had not been settled with at the time the execution issued; (3) because the execution was issued without authority, in a case which never had existence, and is invalid, because it does not provide for the sale of all the property to pay the full amount ordered by the decree but only to pay the taxes; (4) because the sheriff did not sell the property for the highest and best bid; (5) because the price received for the land was wholly inadequate; (6) because appellee and the sheriff were misled by the form of the execution. It is contended on behalf of appellant that the court erred in sustaining this motion, and that none of the grounds alleged are sufficient to justify the setting aside of the sale. A great many questions are argued by counsel which we do not find it necessary to consider. These are the pivotal facts which the court was authorized to find from the record: Long, who was the attorney for Cornoy, and who represented
Under these circumstances, should the sale be allowed to stand? Authorities are of little help in the solution of such a question, for each case must, of necessity, be governed by its own facts. If the land was subject to redemption, there would be more reason for saying that appellee should avail himself of some other remedy; but here there is no redemption, —no day of grace. The lands sold for less than one-third of their value, and, according to appellant’s contention, he may hold them free and clear of all claims of appellee thereto, notwithstanding the judgment and decree gives plaintiff a junior lien thereon, and permits him to protect himself from the appellant’s claim for taxes. Under the facts disclosed by the record, it appears that McCracken was not the best and highest bidder, and the sheriff should have either accepted the McFarland bid, or he should have adjourned the sale, in order that McFarland might be advised as to the facts connected with the issuance and form of the execution. While it is likely no actual fraud was intended, yet there was that which in law amounts to a legal fraud, — which is sometimes defined to be “a mistake of one party, taken advantage of by anothei’,” — and the sale was rightly set aside for this reason. We are not to be understood as holding that the sheriff was required to accept such a bid as the one contained in the letter referred to. It rests with him to say whethér
We will not stop to review the cases cited by appellant in his brief. None of them were decided under a like state of facts, and it would be a waste of time to consider them at length. It will be observed that this is a direct attack upon the sale, not a collateral proceeding calling in question the validity of the execution, and that the rules of law are quite different in their application to the different classes of attack. We have taken as true the strongest version of the evidence against appellant’s position, as is our duty on such appeals, and do not wisji to be understood as finding that all the matters of fact recited are verities. We simply say that the court below was justified in so finding, and that, if he did so find, we cannot interfere. Our conclusions find some support in the following cases: Swortzell v. Martin, 16 Iowa, 519; Cavender v. Smith’s Heirs, 1 Iowa, 306; Fitzgerald v. Kelso, 71 Iowa, 731 (29 N. W. Rep. 943); Trust Company v. Shrope, 73 Iowa, 297 (34 N. W. Rep. 867); Lehner v. Loomis, 83 Iowa, 416 (49 N. W. Rep. 1018). The order of the district court setting aside the sheriff’s Sale ÍS AFFIRMED.