88 Iowa 595 | Iowa | 1893
The judgment upon which this action is brought was recovered by the plaintiff against the defendant, Andrew Banks, in the circuit court of Howard county, Maryland, on the fifth day of Septem
The answer alleges that on the twenty-seventh day of August, 1889, the defendant was the owner in fee simple of an undivided one-third of the land attached, and that he held the undivided two-thirds as trustee for the benefit of the plaintiff and Annie W. Groodwin, under the provisions of the will of Daniel B. Banks, deceased, all of which was known to the plaintiff before the attachment in this case issued; that on the day last named he entered into an agreement in wilting with Siemen for the sale of the land, and that immediately thereafter Siemen entered into the actual possession of it', and has continued to occupy it since that time; that before the fifth day of September, 1889, the defendant sold and assigned his interest in the proceeds of the sale of the land to the intervenor. The petition of intervention alleges that the intervenor is the owner of the proceeds of the sale of the defendant’s interest in the land.
The plaintiff admits that the defendant held an undivided two-thirds of the land as trustee, as claimed, ,and that Siemen has been in possession of the land since the date of the alleged sale, but denies that he was in possession in consequence and by virtue of the ■sale, and alleges that he was in possession as the tenant ■of the defendant. She denies that she had notice of the alleged change of possession before the attachment was levied, and insists that the defendant had an attachable interest in the land when the levy was made.
“This agreement witnesseth that Andrew Banks has this day sold to W. Henry Siemen the south half of section eleven, township ninety-five, range forty-six, west of the fifth principal meridian, in Sioux county, Iowa, for eight thousand dollars, as'follows: Two thousand, dollars cash when deed is delivered, and six thousand dollars due as follows: Five years from September 1, 1889, provided six months’ notice is given; interest seven per cent, annually from November 1, 1889, each year. Said Banks is to give warranty deed, and all. necessary papers, so that title is vested in him absolute, and all expense of perfecting title is to be paid for by-said Banks. The taxes of year 1889 and thereafter are to be paid by Siemen. If either party to this agreement fail to comply strictly with the above provisions,,*599 the party so forfeiting shall pay to the other party five hundred dollars in cash, and any court of record shall have power to enter up such judgment.
[Signed.] “Andbew Banks,
“W. Henby Seimen.”
On the fourth day of September, 1889, the defendant, as trustee, and in his own right, and his wife, executed to Sieman a deed for the land. On the seventeenth day of September, 1889, the defendant, as trustee, reported the sale to the circuit court of Baltimore city, service of the report having been acknowledged on that day by the solicitors of the plaintiff and Annie W. Groodwin, and the report was ratified and confirmed by the court on the nineteenth day of the next month. The deed was sent to the garnishee, William Bieckhoff, and received by him on the eleventh day of September, 1889, and was by him handed to Siemen, but immediately returned to be held until the title should be settled. At the same time, Siemen obtained from Bieckhoff a loan.of two thousand dollars, and executed his notes and mortgages according to the contract of purchase. The two thousand dollars in cash, and a note for six hundred and sixty-six dollars and sixty-seven cents were designed for the payment of the amount due for the defendant’s share of the land. A note for the remainder was made to the defendant as trustee. . The money and papers were left with Bieckhoff,- to be held until the attachment proceeding should be settled.
The evidence also tended to show that on the fourth day of September, 1889, the defendant assigned, in writing, all the money due and to become due to him from Siemen, to the intervenor. The consideration of the assignment was the agreement of the intervenor to pay a note which he had indorsed for the accommodation of the defendant, for the sum of three thousand
“Paragraph 4. The court instructs you that the contract between Siemen and Banks, in the light of all the circumstances surrounding such transaction, together with the subsequent conduct of the parties thereto, was a valid contract of sale of the lands by Banks to Siemen on the twenty-seventh day of August, 1889, and that such land would not be subject to the writ of attachment levied thereon at the instance of the plaintiff.”
The appellant contends that her rights were fixed on the seventh day of September, 1889, when her writ of attachment was served, and that they could not have been defeated nor affected by any subsequent acts of the defendant and the intervenor; therefore, that the court erred in giving the portion of the charge quoted. Among the reasons urged in support of this claim is that the contract of sale was not valid and binding; that a court of equity would not have enforced a specific performance of it; and, therefore, that there was not such a change in the character of the interest of the defendant in the land as would defeat the levy of the writ. It may be conceded that the contract was not of a character to be fully enforced by a court of equity. It was signed by the defendant individually, but not as trustee. It was not signed by his wife, and could not have been enforced against her. It was entered into without notice to the solicitors of the plaintiff and Annie W. Goodwin, contrary to the order of the court. But, notwithstanding all this, it does not follow that the plaintiff may take advantage of defenses which the purchaser could have made in an action brought to compel him to perform his part of it. It must not be forgotten that an undivided two-thirds of the land could not, in any event, have been appropriated to pay the judgment of the plaintiff, and that the attachment and
What we have said disposes of the controlling questions in the case. The evidence was sufficient to support the judgment, and we discover no sufficient reason for disturbing it. Aeeirmed.