Davis v. Bonar

15 Iowa 171 | Iowa | 1863

Wright, J.

I. After the levy of the execution, by the' sheriff of Clarke county, the District Court of that county had jurisdiction to grant the writ of injunction and hear the cause. The proceedings were not pending in Polk county (where the Supreme Court is held), within the meaning of § 2194 of the Rev. of 1860, as claimed by appellants.

II. That a pleading is argumentative is not a cause of demurrer, under the Rev. of 1860 (§§ 2876, 2918, 2061 and 2063). The statute limits the causes of demurrer, and this is not one of them.

III. Appellants insist, that as complainant purchased the property after the decree was rendered in the District Court, (in the case of Perry v. Kearns), though before the appeal was taken, he acquired no rights thereby, but was a purchaser pendente lite, and, as such, was concluded by the decree afterwards rendered in the Supreme Court, in the same case. This proposition is controverted by appellee, and is the one to which counsel have, for the most part, directed their argument.

It will be seen from the statement of the case that the decree granting the relief asked by Perry’s bill was rendered. April 14, 1860, and on the 23d of the same month Kearns. received the amount óf the decree from the clerk, and paid the costs adjudged against him. Six months after this, complainant bought the land, paying the purchase money in full. At this time no appeal had been taken, nor was there anything upon the record, or in any other place, indicating an intention on the part of Kearns to appeal said cause. After this, at what time does not definitely appear, he prosecuted his appeal. And it is now claimed that this appeal was a continuation of the suit, and that if a party purchases property affected by a decree before the expiration of the year for appealing, he purchases with the fall knowledge that an appeal may be taken and his title defeated.

However correct this might b?, as a general proposition, we'cannot concede its correctness as applied to this case. Complainant is a Iona fide, purchaser of the premises, unless he is to be affected with notice that Kearns had a right to appeal within the year, and that if he did and reversed-the cause, his property would be held for the payment of the new or subsequent judgment. If he is thus held, it is upon the principle that the action was still pending, and’ he bought at his peril. But to avail themselves of this principle appellants should show that the suit or proceeding was prosecuted with reasonable diligence, and that the party appealing was not guilty of such laches as to injure or mislead, third persons. If a party relies upon a pending action, he should show that it has been duly prosecuted, or that he has been constant and continuous in its prosecution. Ferrier v. Buzick et al., 6 Iowa, 258. And when we go one step further, and remember that Kearns not only failed to prosecute his appeal for more than six months after the decree was rendered, but acknowledged the receipt of thp amount of said decree upon the record, and paid the costs, all fair room for doubt is removed. While his acceptance of this amount did not conclude him from appealing, nor prevent his recovering a larger amount in the appellate Court, third persons had a right to presume that he submitted to the action of the Court, and was content with his recovery. From this act complainant had a right to believe that the land was released and free from all claim under the mortgage. And while it is true that complainant, by his purchase, only acquired the interest or title held by Perry, yet Kearns might, by his act, waive his claim, which remaining unrescinded, would inure to the benefit of the purchaser. The act of Kearns in this instance extinguished the lien, so far as third persons were concerned. Complainant was not bound to know that, notwithstanding the satisfaction of the judgment, appellant still intended to prosecute an appeal. And in this connection we may remark that the receipt itself, instead of showing that the $300 was not taken in full, tends to show that the creditor intended (if he had any after purpose) to look to Webster and not the land or Perry, the subsequent purchaser.

The cases of Danforth, Davis & Co. v. Carter and May, 4 Iowa, 230, and Same v. Rupert et al., 11 Id., 547, will be found to entirely accord with the above views. And see, also, Lessee of Trimble v. Boothby, 14 Ohio, 109.

Affirmed.

The appellant filed a petition for a rehearing, which was considered by the Court and overruled.