Eggers v. Redwood

50 Iowa 289 | Iowa | 1878

Seevers, J.

1. judicial rate iSa' The sole and only ground relied on to set aside the sale is that the premises were sold together, instead of separately, and the homestead sold only to supply the deficiency, if any, after exhausting the other property. No prejudice in any other respect is averred ; nor is it averred or claimed that the sheriff did not first offer, and separately, the ten-acre tract for sale. The presumption is that the officer did his duty in this respect, in the absence of any showing to the contrary. This was held in Love v. Cherry, 24 Iowa, 204, and it is there said in substance that, when an officer’s return of an execution sale of two lots states that they were sold for a certain s.um, but does not state whether separately or together, the presumption is that the officer did his duty and sold them separately. That one of the tracts was the homestead could make no difference in this respect. The presumption that the officer did his duty should prevail in such case as well as in any other, and it was substantially so held in Burmeister v. Dewey, 27 Iowa, 468.

Certainly, if the sheriff first offered the ten-acre tract and there were no bidders, it was his duty to offer and sell the’ whole, including the homestead, together. Otherwise the plaintiffs could enjoy and get the use of premises which they had expressly pledged to pay the debt, without ever paying’ the same, unless’ the plaintiff in execution chose to purchase the property other than the homestead. This is not the meaning and intent of the statute.

Affirmed.