31 Iowa 322 | Iowa | 1871
The following are the provisions of the law applicable to this question: “ That no goods, chattels, lands or tenements shall be sold on execution issued from any court for less than two-thirds the fair. value thereof, at the time of sale, exclusive of all liens, mortgages or incumbrances thereon.” * * * '
“ Eor the purpose of ascertaining the value of property to be sold on execution, two disinterested householders of the neighborhood shall be selected as appraisers.” * *
“Whenever any property thus appraised cannot be sold for two-thirds of its valuation, it shall be the duty of the officer by whom such levy shall have been made, when he" returns such execution to return such appraisement therewith, stating in his return such failure to sell.” Rev., §§ 3360, 3362 and 3365.
There is no little conflict in the decisions as to the effect of a sheriff’s sale. Some courts hold that the return of the sheriff must show a strict compliance with all the requirements of the statute; -others, that the purchaser relies upon the judgment, the levy and the deed, and that all other questions are between the sheriff and the judgment defendant. It is to be observed that this is a case not merely of irregular appraisement, but one in which the property was sold by the sheriff to the judgment creditor for one-sixth the appraised value.
In Morse v. O'Neal, 2 Carter, 65, it was held, that, where the statute required an appraisement of property, a sale without appraisement was void, and the purchaser acquired no title. To the same effect is Holman v. Collins, 1 id. 24, in which the court said: “ There is no more hardship in requiring a purchaser to inform himself of the appraised value of the property than there is in requiring him to know of the judgment and execution. The appraisement must be in writing, must be taken by and lodged with the sheriff before the sale, and must be returned with the execution. Wé do not see why it is not as easy of access as the execution itself to one desiring to become a purchaser.” In Patrick v. Oosterout, 1 Ohio, 27, it was held that lands sold upon execution under a statute requiring appraisement must be valued and the appraisers sworn, or the sale would be void. In Allen v. Parish, 3 Ohio, 188, the rule was so far modified as to sustain a sale made to a stranger without appraisement. And this doctrine has been recognized and followed in the subsequent cases of Ludlow v. Johnson, 3 Ohio, 553, and Stall v. McAllester, 9 id. 19.
It has been held in our own State that the matter of valuation under an appraisement law is not merely directory but a question of power on which depends the validity of the sale. Sprott v. Reid, 3 G. Greene, 497. The case of Harrison et al. v. Rapp, 2 Blackf. 1, is upon all fours with the present. The statute provided, that no real property should be sold upon execution for less than one-half its real value; to be ascertained by appraisement. The property in controversy was appraised at $4,640 and purchased by the plaintiff in the action, who was also the execution plaintiff, for $565. It was held that the sheriff’s
David Nelson testifies: “When he (Eobert) left with the money to make the purchase, it was his understanding, as well as mine, that the lands purchased by him were to be mine. When he returned from Iowa, the same understanding was had between us. He then told me that the land was entered in his name, but that at his death I should home the lemd.”
The conduct of Eobert, in claiming the land until his death,' and that of David, in acceding to the claim, is altogether inexplicable upon the theory that the lands were entered for David with money furnished by him. Further, David testifies that William went “ to the land in Lucas county, Iowa, owned by Hdbert,”.and that “ William' had sold his land, and I wrote to him to go on to Poberfs lemd and improve it.” This appears to be an involuntary recognition of the facts as to the ownership. William Nejson, in his deposition, says: “At the time I moved on to it, it belonged to my mother during her lifetime, and then it would belong to the heirs.” These statements in the testimony, together with others which might be specified, inconsistent with defendant’s ownership, in connection with the fact that for sixteen years after the entry, and for six years after the death of Eobert, he made no claim to the property, lead us to the conclusion
III. Coming now to a consideration of William Nelson’s interest in the property, many of the suggestions made with regard to the claim of David are applicable. The plaintiff is attempting to establish an equitable interest in William, in opposition to the legal title, and he, too, must do' so by proof clear and satisfactory. While the evidence may lead to some probable inferences that William had a contract with the other, heirs for the purchase of the property, yet we are constrained to the conclusion that neither the terms nor the existence of such contract is clearly established. As an heir of Robert, William owns an undivided one-seventh of the property, upon which plaintiff’s judgment is a lien, and which the plaintiff may subject to the satisfaction of his claim in such manner as he may be advised. And as, owing to the invalidity of the sheriff’s sale, he is not in a condition to obtain affirmative relief, his petition will be dismissed without prejudice to his right to subject the interest of William Nelson to the satisfaction of his judgment.
The decree of the court below dismissing the plaintiff’s petition is affirmed, and that settling the title of the property in controversy in David Nelson is reversed.
The decree of the court sustaining the cross bill of David Nelson is reversed, and the cause is remanded for decree in harmony with this opinion.
Reversed.