59 Iowa 686 | Iowa | 1882
Lead Opinion
I. The conflicting titles of the Respective parties to the land in controversy have a common source in John O’Brien. The plaintiff clairhs the land under a deed executed by him. Defendant, T. W. Harrison, claims the land under a sheriff’s deed, made pursuant to a. sale upon a judgment in favor of John O’Brien against plaintiff in this case, in an action upon a contract between the parties, whereby it was claimed plaintiff became bound to support John O’Brien, his father. Upon this judgment a sheriff’s sale and deed were made to James R. White, who conveyed the land to Catherine Murry, and she conveyed it to defendant, T. W. Harrison. We are required to pass upon the validity of the title under
1. The judgment upon which the land was sold was rendered May, 1876, and execution issued thereon the July following, and in August it was levied upon the land in controversy.
2. Prior to the sale John O’Brien died, having disposed of his property by will. Catherine Muny is a devisee under the will. She is a daughter of the devisor, John O’Brien.
3. Before the sale of the land upon execution, but after the levy, William O’Brien, the defendant in the judgment and the plaintiff in this ease, perfected an appeal, but did not supersede the judgment.
4. The land was sold to James A. White, without redemption, and a deed immediately executed, for the reason that an appeal had been taken in the ease. White conveyed to Catherine Murry, and she to defendant, T. W. Harrison.
5. By the decree in the action, it was declared that the title of the land in controversy was vested in William O’Brien and judgment was rendered against him for $895.75 and costs. Upon the appeal, this court decided that John O’Brien, was not entitled to recover a money judgment against William, and that William’s title to the land in dispute was valid. See 47, Iowa 392. But in the action, another matter was involved. There was a contract between the parties that John should convey to William certain other lands in consideration of the support of John and his wife. It was held upon the appeal, that, under this contract, neither party was entitled to affirmative relief, further than that the contract, so far as it constituted a cloud upon the title of the land described in it, should be set aside and declared of no effect. A decree, in accord with this opinion was entered in this court. By this decree William recovered the costs'of the appeal, but it was ordered that the court below should make an equitable apportionment of the costs of that court in harmony with our
The decision and decree of this court was after the sheriff’s sale and deed, and the deed executed by White, to Catherine Murry. The deed to Harrison by Murry was executed before that decree.
The foregoing are undisputed facts of the case. Other matters, about which there is conflict of evidence, will be hereafter stated.
A claimant of land, who has not paid in full therefor, cannot be regarded as a good faith purchaser. Kitteridge v. Chapman, 36 Iowa, 348; Syllyman v. King, 36 Iowa, 207.
The evidence clearly shows that White did not pay his bid made at the sheriff’s sale for the land. -He paid the costs, amounting to $146.70, and no more. The land was conveyed by White to Catherine Murry, for the consideration of $1200, but she paid to White only the sum which had been paid by him. Under the rule above stated, these parties are not bona fide purchasers.
With Harrison the ease is no better. He was the attorney of John O’Brien, both in the Supreme Court and the court below, and is chargeable with knowledge of the appeal and all proceedings had in the case. We reach the conclusion that
Defendants now insist that the provision of the decree above quoted, and the defendant’s failure to move for an equitable apportionment of the costs, leave the judgment for costs standing. But it is very plain that this position is in conflict with the language of the decree under consideration. It expressly provides for, and directs the court below to make, an equitable apportionment of the costs.' In this case it clearly implies that the judgment for costs shall not stand, but that a new judgment for costs, after the matter is acted upon, shall be entered. The judgment reversed was an absolute judgment against the defendant for all the costs. Our decree directs that the matter of costs be re-adjudicated by the court below, and of course it implies that, upon such adjudication, a judgment should be entered, to take the place of the one reversed and set aside.
The provision of the decree that the defendant shall be secure in the right to move for an equitable apportionment of costs, does not nullify the preceding provision, nor authorize the conclusion that, if he failed to so move, the judgment shall stand. It simply indicates the method to be pursued by
is not all before us. We must regard tbe testimony as being fully before us. Cross v. B. & S. W. R. R. Co. et al., 51 Iowa, 683; Starr v. City of Burlington, 45 Iowa, 87.
In view of this rule and tbe tenders made by tbe plaintiff, tbe defendant is entitled to recover tbe amount tendered, and will have judgment therefor without costs.
As tbe conclusions we have announced in tbe foregoing discussion are decisive of tbe case, questions involving other points discussed by counsel need not be considered.
Reversed.
A petitition for rehearing has been filed in this case, which, under the statute, has been supported by an oral argument made by defendant’s counsel. We have, upon the petition, re-examined the case, and remain well satisfied with the conclusion and arguments of the foregoing opinion.
A brief reference to two points made in the petition for rehearing is proper, in order to correct a clerical mistake occuring in our opinion, and to make plain the position that the case is triable de novo in this court.
I. It is stated in the opinion that the deed to Harrison was executed before the decree was rendered under which the sheriff’s sale was had. The deed in fact was after the decree. The mistake is unimportant, as Harrison could not be regarded as a good faith purchaser upon the facts stated, even although he purchased before the decree.
II. Defendants insist that the case is not triable d& novo by reason of the following facts: Upon the trial in the District Court the plaintiff offered in evidence the printed abstract filed in this court in the case wherein the judgment was rendered upon which the land was sold. The abstract in this case does not set out that abstract, but refers to it as being filed in this court. The defendants, appellees in this case, filed an amended abstract of great length, purporting to set out evidence in the case. ' It is nowhere stated or claimed therein by defendants that the two abstracts, the original and amended, fail to present all the evidence. The amended abstract contains many records, as executions, returns, etc,, besides testimony of witnesses, some of which, it may be presumed, were found in the abstract in the former case.
It is the settled rule of the court that when an amended abstract is filed, in the absence of a claim or allegation therein that it does not with the original abstract present all the evidence, we will presume that all the evidence is before us.
Counsel for defendants cite decisions of the court to the ef
The presumption that the amended abstract supplied all evidence in the case is sustained by the consideration that our attention has not been called to a single fact relied upon by either party, which is claimed not to be before the court, for the reason that all the evidence is not found in the two abstracts.
It is fair to presume that evidence of all facts thought important by defendants, which was omitted in the original abstracts, is found in the amendment thereto filed by them. Surely, when the defendants presented an amended abstract for the avowed purpose of making the evidence before us complete, it must be presumed, in the absence of anything to the contrary appearing therein, that they presented in their amendment all evidence omitted by the abstract filed by the other side. We are authorized to presume that, when the amended abstract was filed, defendants were content to try the case upon the evidence presented to us.
The only office of an amended abstract is to supply omissions and make corrections of the original abstract. We will presume that all omissions and corrections are made in an amended abstract unless the contrary is therein shown.
The petition for rehearing is overruled.
Dissenting Opinion
I am unable to concur in the foregoing, and, upon reconsideration, I am unable to concur in some of the points determined in the original opinion, and therefore file this dissent.