180 Iowa 1166 | Iowa | 1917
The undivided one-twenty-first interest of Lawrence Drake, plaintiff in this case, in a tract of 227.08 acres of land, was sold on general execution to satisfy a judgment for $319.75 entered against him for costs in a criminal prosecution. A sheriff’s certificate of purchase whs issued to S. E. Brickner, appellant, who bid the land in at the sale for $800. Shortly thereafter, this suit was commenced by Lawrence Drake to set aside and cancel
It is claimed on behalf of- appellee: (a) That no levy was in fact made of the execution, for the reason that the sheriff did not make the entries on the execution at the time, as required by statute; (b) that the levy was excessive; (c) that the price at which plaintiff’s interest was sold was grossly inadequate; (d) that the transaction was fraudulent in law and fact; (e) that no judgment was ever entered upon the record book of the clerk’s office against the defendant for costs, and that the purported judgment upon which execution was issued is wholly void; and (f) that the land should have been offered for sale in smaller tracts instead of en masse, and that a much larger quantity was sold than was necessary to satisfy the judgment.
The trial court found the interest of Lawrence Drake in the real estate sold to be worth approximately $6,000, and that the sale and levy were unlawful, unjust and inequitable, and not only a fraud in law, but that same operated as a fraud in fact.
I. Section 3965 of the Code, 1897, provides:
“The officer to whom an execution is issued shall indorse thereon the day and hour when he received it, the levy, sale or other act done by virtue thereof, with the date thereof, the dates and amounts of any receipts or payment in satisfaction thereof; which entries must be made at the time of the receipt or act done.”
In a legal sense, there can be no levy on real estate k xxntil the fact thereof is entered upon the execution. The making of required entries upon the encumbrance book is not sufficient. Mullaney v. Cutting, 175 Iowa 547.
The clerk of the district court, who issued the execu
The full return on the execution was offered in evidence, from which it appears that the date and hour when received by the sheriff were made a part thereof. The return, in language and form, has the appearance of being a continuous, narrative statement of the proceedings unaer execution, and of having probably been made after thé sale.
The deputy sheriff to whom the execution was delivered, and who conducted the sale, was not called as a witness; hence, the only direct testimony bearing upon the question is that of the clerk. It is by no means certain that the entries, ivithout which the levy was invalid, were made upon the execution as required by Section 3965.
“The officer [with the execution] shall in all cases select such property, and in such quantities, as will be likely to bring the exact amount * * * to be raised, as nearly as practicable, * * * ”
The execution in this case was levied upon the undivided interest of Lawrence Drake in a tract containing 227.08 acres, which interest was of the fair value of $6,000. The land in question was encumbered by the life estate of the mother of the plaintiff and of the wife of appellant.
It is the contention of appellant that the’Sheriff was bound to levy upon the undivided interest of the judgment debtor in the whole tract; that he could not sell his interest in a subdivision thereof, and that, even though the levy was excessive and the price obtained at the sale inadequate, the 'same could not be set aside on that ground alone. The claim here made is based upon our holding in Jonas v. Weires, 134 Iowa 47, as follows:
“The plaintiff had only an undivided interest in the tract of land involved, and this interest was subject to a life estate. It would have been impossible for the sheriff to levy upon and Sell plaintiffs undivided interest in a portion of the tract, for plaintiff was not seised as a tenant in common of an undivided interest in each of the parcels, but only an undivided interest in the whole. A tenant in common may make a valid sale of an undivided fraction of his tmdivided interest, but he cannot sell his interest, or any portion thereof, in a part of the premises by metes and bounds, because this would interfere with Ms cotenants’ right of partition, and for this reason an execution sale of the interest of a tenant in common in a portion of the premises subject to the common ownership cannot be made.”
It is stated by appellant in his abstract that appellee was the owner of a like interest in another tract composed of several small subdivisions, but aggregating 117.5 acres. It is not quite clear from the evidence what was the fair market value of the smaller tract, but it must have been in the neighborhood of $12,000. If so, the interest of the judgment debtor was approximately worth $600, and should
It has been held in other jurisdictions that, where the judgment debtor is the owner of an undivided interest in separate parcels or tracts not situated or used in common, his interest in any one or more parcels is subject to execution and may be levied upon and his interest in enough parcels sold to satisfy the execution, but that less than his whole interest in each parcel cannot be sold. Freeman on Cotenancy and Partition (2d Ed.), Section 216; Butler v. Roys, 25 Mich. 53; Starr v. Leavitt, 2 Conn. 243.
It appears to be the theory of appellant that the tracts above referred to were so situated that it was proper, under the holding in Jonas v. Weires, supra, to sell the interest of the judgment debtor in each separately. If so, it was the duty of the sheriff, if possible, to levy only upon such interest of the judgment debtor in property subject to levy as would be likely to bring the exact amount to be raised, as nearly as practicable.
It has, however, been held that, if the land cannot be sold in separate tracts for want nf bidders, it is then proper to sell it en masse. Connecticut Mutual Life Ins. Co. v. Brown, 81 Iowa 42. This right, however, is subject to the provisions of the statute hereinafter referred to. It did not appear, in the cases referred to, that the debtor possessed other property subject to levy.
It would seem that the interest of Lawrence Drake in the 'smaller tract should have been sold for enough to sat
“The holder of a judgment is .not to be deprived of his right to satisfy his judgment out of the property of the judgment debtor because the only property which he can find is an indivisible parcel greatly exceeding in value the amount of the judgment; nor is there any fraud in bidding only the amount of the judgment and costs.” Jonas v. Weires, supra.
This case, however, is distinguished from the cited case by the fact that' the judgment debtor was possessed of other property subject to levy, out of which the judgment could have been satisfied. In exercising the discretion required of a sheriff acting with an impartial regard to the interests of all parties concerned, the sale might well have been adjourned to a later date by him.
IV. As above stated, the court found the levy “unlawful, unjust and- inequitable * * * and not only a fraud in law, but that same operated as afraud in fact.” It is quite earnestly contended by counsel for appellant that this finding was not sustained by the evidence.
-Numerous witnesses were called on behalf of appellant to testify to the market value of the land and its value as security for a loan. It also appears from the evidence that appellant probably knew that plaintiff could not raise the money with which to satisfy the judgment, and that he did not have the right to redeem from the sheriff’s sale. The evidence does not show that appellant was instrumental in causing execution to be issued on the old judgment for costs, but it does show that he was deputy clerk of the district court at the time the costs were taxed.
The court, in Copper v. Trust & Savings Bank, supra, reiterated the prior holding of the court that gross inadequacy of consideration, while insufficient in itself to justify the 'settings aside of the sale, nevertheless may be a “very important fact in connection with other circumstances tending to establish fraud, either actual or constructive. Where other circumstances are shown which excuse the plaintiff’s failure to redeem, gross inadequacy of consideration may be sufficient to establish an inference of fraud.”
Again, in Fortin v. Sedgwick, 133 Iowa 233, the court said:
*1175 “Even in the absence of other circumstances characterizing the case, the enormous disproportion between the value of the property sold and the sum to be raised is, in itself, ground from which the inference of fraud is legitimate.”
“From the cases here cited we may draw the general conclusion that, if the inadequacy of price is so gross as to shock the conscience, or if, in addition to gross inadequacy, the purchaser has been guilty of any unfairness, or has taken any undue advantage, or if the owner of the property or party interested in it has been for any other reason misled or surprised, then the sale will be regarded as fraudulent and void, or the party injured will be permitted to redeem the property sold. Great inadequacy requires only slight circumstances of unfairness in the conduct of the party benefited by the sale to raise the presumption of fraud.” Graffam v. Burgess, 117 U. S. 192.
It is also claimed by appellant that notice was served upon the plaintiff of the execution sale; that he did not attend, and that he made no effort at the sale to protect his interest. The evidence quite satisfactorily shows that he was unable to raise funds with which to pay the judgment and thereby prevent the sale. We do not find copy of the notice in the record, but, as plaintiff testified that he did not know that the appeal destroyed his right of redemption, it may be assumed that the notice did not apprise him of that fact.
Without discussing the evidence in detail, but viewing the same in the light of the authorities cited, we reach the conclu
It is our conclusion that the judgment of the lower court should be, and is, — Affirmed.