19 Iowa 538 | Iowa | 1865
Thus regarded, they were undoubtedly sufficient to require the court to set aside the sale, and consequently the court erred in sustaining the demurrer to the answers.
We briefly state a few principles of law applicable to the subject, and which will at once show the correctness of the conclusion just announced, and serve as a guide to the court below in the further progress of the cause.
No reason is perceived why this, if true, would not be a good defense even at law. Indisputably it is ground to set aside and annul the sale. Most manifestly so where, as in the case at bar, no intervening right of third persons have attached.
II. Where the statute declares a note tainted by usury to be wholly void, a sale under the power contained in a trust deed securing-such note, will confer no title where, as in this case, the beneficiary becomes the purchaser. 2 Am. Law Reg., N. S., 717, § 24, and cases there collected. See also, Code, 1851, § 2081; Grimes v. Shorieve, 6 Mon., 547, 553; Slapp v. Phelps, 7 Dana, 296; Jackson v. Dominick, 14 Johns., 435; Richardson v. Field, 6 Me., 35; Halter v. Burton, 6 Conn., 436; Hyland v. Stafford, 10 Barb., 558 ; Cook v. Colyer, 2 B. Monr., 71.
Among the reasons which may be mentioned as entitling the defendants to this relief, are the following:
1. This application was not unreasonably delayed, being made before the property had changed possession, or any rights of third persons had attached.
2. The property, which was the homestead, was sold in the absence of the debtor, and without his knowledge, and against the written protest and notice of his wife.
3. It is alleged to have been sold for an inadequate price, arid there is no showing or claim that the trustee, by an adjournment of the sale or otherwise, endeavored to procure a larger or better bid.
4. Of the $2,000 borrowed, there is alleged to have been paid, in money and by the sale of other property over $1,600, leaving, aside from usurious interest, less than $400 of principal due the plaintiff at the date of the trustee’s sale. Yet the plaintiff bid it in for $1,799, claiming that sum to be due him.
Eeversed and remanded.