72 Iowa 654 | Iowa | 1887
The plaintiff held a general judgment against -the defendant E. E. Moser, and the same was a lien upon a certain lot in the city of Dubuque. The plaintiff caused execution to issue, and to be levied upon the lot' and improvements thereon, and the same was advertised to be sold subject to a prior mortgage, May 17, 1884. Prior to that time, the defendant Moser brought an action for an injunction to restrain the sale; alleging that fhe premises levied-upon constituted his homestead. Afterwards the injunction suit was dismissed, and the plaintiff then caused another execution to be issued and levied upon the premises, and the same were sold, and bid in by him for the amount of his execution. In the meantime, the prior mortgage had been foreclosed, but this plaintiff redeemed from such lien; and at the expiration of a year from his sale he obtained a sheriff’s deed, and took possession. If the premises had been sold under the first levy, and upon the advertised sale, and if they had been bid in by the plaintiff, and not redeemed, he would have been able to obtain possession about seventeen months sooner than he did. He claims that he sustained damages in the amount of the costs made upon the first execution, and also to the amount of the value of the use of the premises between the time -when he might have obtained posses
As to the costs made upon the first execution, we have to • say that it appears to us that they should have been embraced in the second execution, and, in the absence of any averment to the contrary, we think that we may presume that they were. Now, the full amount of that execution appears to have been made. It is true that the plaintiff bid in the property; but we think that we must treat the matter the same as if the amount of the execution had been bid and paid by some one else.
. As to the damages alleged to have been sustained by being kept out of the property by the injunction, we have to say that, as no sale was made under the first levy, it is impossible to know what the result of the sale, if made, would have been. It is possible that the property might have been sold to some person other than the plaintiff. The correct view, we think, is that the plaintiff was kept out of his money; but his judgment bore interest, and that was afterwards virtually realized in the second sale.
We see no error in the ruling below, and the judgment must be Afeiemed.