137 Iowa 682 | Iowa | 1907
The real estate, in question consists of a forty-acre tract situated in Crawford county; and on May 6, 1901, the same was owned by the defendant, Amanda Connelly. Plaintiff’s action is based on a contract in writing for the sale of said real estate executed in the name of the defendant by one Jackson, agent. The writing is dated May 6, 1901, and recites payment of the consideration in full, and provides that deed of conveyance shall be made on request and surrender of the contract. Such writing was not made a matter of record. In November defendant, acting in person, contracted in writing to sell said real estate to intervener, and December 9, 1901, conveyance thereof was made to intervener by warranty deed, and the consideration money was then paid in full. The deed thus made was recorded, December 11, 1901. The action was commenced December 31, 1901. Plaintiff alleges his request for a deed and the refusal of defendant to comply therewith. It is the prayer of his petition that he have an order for the execution of a deed; and, if defendant fails to comply, that he have a decree establishing his title. On February 1, 1902,
Appellant seeks a reversal of the decree appealed from on two grounds: (1) That the plea of adjudication and estoppel was good and should have been sustained; (2) That the decree is not sustained by, and is contrary to the evidence.
Considering the phrase appearing in the decree quoted by us above, on no view, as we think, can it be given effect to control the situation, and take the case out of the rule of Kern v. Wilson. ‘In that case the judgment ordered a sale of the property there in question to satisfy the amount found due plaintiff; thus, on its face, apparently making complete an effectual disposition of the property without any regard for the rights of the intervening mortgagee. Here the decree — given construction most favorable to the claim of appellant — assumes to cut off intervener without naming her as one claiming through and under Mrs. Connelly, from any rights in the property in controversy. The
And from this it follows that it will not be given construction such as to result in a positive wrong — -evidently not within contemplation — whenever such result is possible to be avoided. It is of no significance that the name of intervener was inserted in the caption of. the default decree.
On the merits of the controversy, the decree appealed from 'was correct, and should be approved. The evidence made it clear that Jackson, who assumed to act as agent for defendant and who executed the contract in her name on which plaintiff relies, had no authority whatever to so act. Moreover, as we have seen, intervener had no knowledge at the time she took her deed of such outstanding contract. — ■ Affirmed.