175 Iowa 547 | Iowa | 1915
The facts are not greatly in dispute. The question is whether the sale and the proceedings leading thereto were attended with such irregularities as to entitle plaintiff to equitable relief. The ground of the holding of the trial court does not appear in the record. Needless to say that the result of the sale was appalling. The plaintiff is at the disadvantage herein of having received notice of the time and place of the sale. "What he evidently did not know was that the sale was not subject to redemption. The irregularities contended for are quite numerous. These are that the sale was irregular in that the tract was sold en masse; that the bid was inadequate; that the levy, if any, was excessive; that there was, in fact, no levy made before the sale; that, if there was a levy, it was only upon 120 acres of the land.
Section 3970, Code, 1897, is as follows:
There was no attempt in this case to sell the property in any other way than en masse. Neither, on the other hand, was there any plan of division presented by the defendant before the sale. The fact that the property was all encumbered under one encumbrance is
In Cooper v. Iowa Trust & Savings Bank, 149 Iowa 336, 343, we said:
“The fact that the execution defendant has a large protection in his- right of redemption for the period of one year from an execution' sale of real estate usually furnishes the strong reason why such sale should not be set .aside for a mere irregularity, which does not affect his substantial right.”
The fact that the sale under consideration was not subject to redemption presents a reason why a more strict compliance with statutory provisions should be required than in eases where such right of redemption exists.
Section 4029, Code, 1897, is as follows:
“When there are no bidders, or when the amount offered is grossly inadequate, or when from any cause the sale is prevented from taking place on the day fixed, or the parties so agree, the officer may postpone the sale for not more than three days without being required to give any further notice thereof, which'postponement shall be publicly announced at the time the sale was to have been made, but not more than*551 two such adjournments shall be made, except by agreement of the parties in writing and made a part of the return upon.the execution.”
There is something to be said in censure of the execution defendant, the plaintiff herein, for his own dilatoriness and negligence. The execution plaintiff and his attorney exercised much patience for many months awaiting the performance of their debtor’s promise to pay. The execution was carried by the sheriff for months, in an endeavor to be lenient toward the debtor. It appears from the record that he is a slow debtor, harassed on many sides by waiting creditors. Ben Franklin had such a debtor once, of whom he said:
“It is against his principle to pay interest and against his interest to pay the principal and therefore he pays neither.”
It may be, therefore, that, if the statute had been followed in letter and spirit, the plaintiff would be in no fair position to ask the ¿id of equity. But we think that the irregu