Miller v. Colville

21 Iowa 135 | Iowa | 1866

.Dillon, J.

i sheksettinlisFae o£ That Miller purchased the land in dispute of Ellis in 1857, and paid $100 upon it, gave his four notes $100 each (now in the hands of the daughters °f Ellis) secured by mortgage; that the other $100 was an advancement to his (Miller’s) wife by her father; that Miller remained in possession until 1860; that he never paid these notes and that they are in the hands of the daughters uncanceled, and as fiir as shown, unpaid, are undisputed facts in the case.

There is affirmative proof that the father was'at the time worth between $2,000 and $8,000, and that he was wholly or almost wholly out of debt. There is nothing to negative this, and indeed it is not shown that Ellis has not always been and is not now perfectly solvent. It is proved that the daughters received possession of the notes of Miller soon after their execution, and have had the possession of them ever since. Their right to these notes was perfect by the delivery thereof to them, and the gift or advancement was not fradulent. Their right to have these notes enforced against the land is also clear, unless Colville is to be regarded as a bona fide purchaser at the sheriff’s sale for value, and without notice.

So far as Miller is concerned, we may observe that the evidence tends to show, and the jury and the court below found, that in 1860 he resold the land to Ellis. We see no reason to interfere with the finding, and hence Miller’s bill for relief, wbicb went upon the ground that he owned the land, was properly dismissed.

But the resale by Miller to Ellis did not destroy the right of the daughters, as the holders of Miller’s notes to enforce them against Miller and against the land in dispute mortgaged by Miller to secure them. There is not a particle of evidence showing that they ever waived their rights. Is Ellis the judgment debtor, or are the daughters entitled to have the sheriff’s, sale and deed set aside? However it may be as to Ellis, we think the daughters are, under the circumstances, entitled to this relief. We briefly enumerate some of these circumstances.

1st. Two of the daughters were minors at the date of the sheriff’s sale, and had so far. as shown no actual knowledge thereof.

2d. The inadequacy of the price paid by Colville. He paid $30.68 for land worth from $400 to $600.

3d. There was a prior levy upon other land not disposed of, rendering the sheriff’s sale irregular. There is no necessity for going as far as the District Court, which held that this alone rendered the sheriff’s sale void.

4th. The legal title to the land was in Miller, whose •deed was duly recorded. Colville knew or was bound to know this, and he knew that he was only levying upon and buying Ellis’ equities in the land. He did not pay for or suppose he was buying a clear and undisputed title. He bought and paid'for the chances.

5th. The attack upon the sheriff’s sale was not delayed until circumstances had changed, and the right of third persons had attached.

6th. The amount of Colville’s judgment was tendered and paid into court for him.

Under these circumstances we hold that the daughters are entitled to have the sheriff’s sale set aside. - We therefore affirm the decree below so far as it orders the dismissal of Miller’s original, and of Colville’s cross-bill. We order tbe sheriff’s sale and deed to be set aside. Golville being entitled to the $25 'paid into court, this being the amount of his judgment and interest. As the daughters do not appeal, we also affirm the order of the court below, dismissing without prejudice their application for a foreclosure. The court below should have made an appropriate order as to costs, taxing Miller and Ellis with all those occasioned by the unsuccessful attempt to show that Miller had never resold the land to Ellis. The daughters should recover against Colville, costs only so far as they were made by his resistance to their claim.

As the decree below is substantially affirmed, Colville must pay the costs' of appeal.

That the costs may be equitably apportioned, and this decree entered and, carried out, the cause will be remanded;

Affirmed.