Gilbert v. Husman

76 Iowa 241 | Iowa | 1888

Seevers, C. J.

— In 1881, tbe land in controversy was owned by one Braffle, and he executed a mortgage thereon to P. A. Wilcox and afterwards conveyed the land to John S. Dage. On October 10, 1883, J. I. Myres obtained a judgment against Dage, which was a lien on the land, and the next day D age conveyed it to one of the plaintiffs. In November, 1883,' an execution was issued on the Myres judgment, the land sold,' and, no redemption having been made, the sheriff conveyed it to the purchaser under whom the defendant' claims. Afterwards the Wilcox mortgage was foreclosed, and it was declared to be the prior lien, and the equitable right of the plaintiffs and defendant to redeem was cut off and barred by the j udgment. An execution was issued on this judgment and the land sold thereunder and purchased by Hiram Parks on October 17, 1885. On the sixteenth day of October, 1886, the plaintiffs paid to the clerk of the district court the amount due Parks as shown by the certificate of sale, which Parks a few days afterwards received from the clerk, and gave or left with him the certificate of sale, but he did not, in writing, assign it to any one.

The foregoing facts are not disputed. We find that the following additional facts are shown by a preponderance of the evidence : The plaintiffs, under the claim that they had the right to redeem, made application to Parks for that purpose, and desired him to assign to them the certificate of purchase. Parks recognized the right to redeem, and agreed to assign the certificate. He, however, was unable to find it, and, at the final interview between them, Parks being still unable to find the certificate, declined to assign it, but told the plaintiffs “to go and pay the money to the clerk ; if they had the right to redeem they were going to get it whether I received the money or not.”

It is conceded by counsel for appellees that the plaintiffs did not have the statutory right to redeem, because they were strangers to the title. Whatever title they had under the conveyance from Page was divested by the sale and conveyance under the Myres judgment. The contention of counsel for the appellees, however, is that the transaction between Parks and appellees amounted to a purchase and equitable assignment of the certificate of purchase, and thereby they became invested with all the rights of Parks. The defendant ' undoubtedly owned both the legal and equitable title, subject, however, to the superior lien and right of Parks. In fact, unless the defendant exercised ‘his statutory right to redeem, Parks could obtain an absolute title to the land in controversy by a conveyance by the sheriff. The contention of counsel for the appellant is that the transaction between the plaintiffs and Parks amounted to the payment of the prior lien by a stranger to the title ; that the plaintiffs were mere intermeddlers. This, we think, is a mistake. When all the controverted facts are eliminated, the transaction amounted to this : The plaintiffs, under the mistaken

notion that they had such right, desired to redeem, and Parks directed them to pay the money to the clerk. They did so, and Parks received .the money from the clerk and left the certificate of purchase with the latter. This, we think, amounted to an equitable assignment of the certificate, and thereunder the plaintiffs are entitled to all the rights of Parks.. The money was paid at the place and to the person directed by the latter, and, although he had previously declined to assign the certificate,. the receipt of the money and delivery of the certificate clearly, in our opinion, amounted to an equitable assignment of the latter. These views are, to an extent at least, supported by Hurn v. Hill, 70 Iowa, 38. The judgment of the district court is

Aeeirmed