Klemme v. McLay, 68 Iowa 158

Klemme v. McLay

68 Iowa 158 | Iowa | 1885

Beck, Cir. J.

I. The defendant recovered a decree of foreclosure and a judgment against Youngck, and became the purchaser of the mortgaged land at a sale upon special execution. The Farmers’ National Bank of Princeton, Illinois, held a judgment against Youngck, rendered before the decree of foreclosure. Plaintiff, claiming to be “the owner and holder” of that judgment, filed an assignment in the clerk’s office purporting to be executed by the bank, and paid to the clerk the amount required to i-edeem from the sale to the defendant. The sheriff refused to recognize the redemption, and made a deed for the land to defendant. The ground of the sheriff’s refusal appears to have been that it was not made to appear that plaintiff was 'the owner or assignee of the judgment.

„ 1. CORPORA-o£°^vidreneeS character and authority. II. It is now insisted by counsel for defendant that plaintiff has failed to show any right to make redemption from the sale. He claims such right as the owner and t _ ° assignee °f the judgment in favor of the bank, bt becomes necessary to inquire whether he has established that right as the assignee and owner of the judgment. He relies upon a written assignment, acknowledged by those claimed to be officers of the bank before a notary public of the state of Illinois. Defendant’s counsel make objections to this acknowledgment upon grounds that need not be stated. But we may assume, for the purpose of the case, th?t the instrument and acknowledgment are sufficient in form, and, if it appeared that the persons executing the instrument in the name of the bank were officers thereof, and authorized so to do, it would be sufficient to *160a valid assignment to plaintiff. But there is not a particle of evidence showing or tending to show the official character of these persons, or that they, as officers, or in any other capacity, were authorized to execute the instrument in the name of the bank. They are designated in the acknowledgment as the president and cashier of the bank, but the officer taking the acknowledgment does not certify or state that they are such officers. It is not sufficient to establish the official character of a person to designate him as an officer. There must be competent and sufficient proof of his authority to act in an official capacity. In our opinion the assignment and acknowledgment, in the absence of proof of the authority of the persons executing the instrument in the name of the bank, are not sufficient to establish the fact of the assignment to plaintiff.

2. EVIDENCE facts control elusions. III. But it is insisted that plaintiff shows by his own evidence that he is the owner of the judgment. He states that he is the owner and assignee thereof. But he : ° states the grounds upon which he bases this conelusion. These are the written assignment and his negotiation with certain persons for the purchase of the judgment. As we have seen, the assignment does not establish his ownership of the judgment. He shows by his own evidence that the judgment really belongs to one Goetz, and not to the bank; that he wrote to Goetz and received a reply from one Miller. The assignment was sent to a bank at Decorah, to which plaintiff paid the money agreed upon in the negotiations. He does not show that Miller was authorized to act for Goetz, or the Princeton bank to act for either of them. He thus fails to show his ownership of the judgment and to support his right thereto. In our opinion the circuit court rightly dismissed plaintiff’s petition.

Affirmed.