163 Iowa 72 | Iowa | 1913
It appears from the plaintiff’s petition
Quoting from the petition:
Par. XII. On the 17th day of January, A. D. 1912, plaintiff delivered to defendant Ness, as sheriff, notice in writing, duly verified, of its title to and ownership of, all of the property levied on, which had been sold conditionally, by plaintiff’s assignor and by plaintiff to defendant Freeman, claiming immediate possession of the same, as security for an unpaid balance of account, due to plaintiff in the sum of about $632.37.
The defendant sheriff, being indemnified by proper bond, refused to release the property. Thereupon, on January 29th, this action was begun against Younker and one Hopkins as principal and surety, on the indemnifying bond. The action was later dismissed as against Hopkins. The indemnifying bond delivered' to the sheriff by his co-defendant bound them to “pay to any claimant of said property, the damage he will sustain in consequence of such seizure or sale, and will warrant to any purchaser of the property such estate or interest therein as is sold, then this obligation "to be void; otherwise in force.” On March 6th following, the sheriff offered the property at public sale under special execution. Thereupon the plaintiff purchased the same for $620, and accepted from the sheriff a bill of sale thereof in ordinary form, whereby the plaintiff became the undisputed
Wherefore plaintiff prays for judgment and decree against defendant Freeman, establishing plaintiff’s title to, and ownership of all of the property described in Exhibit BB as attached hereto, ... as security for the payment of the balance of the purchase price of all said goods sold to defendant Freeman, with interest at the rate of 8 per cent, per annum and costs, and fixing and establishing the amount justly due from defendant Freeman to plaintiff, and awarding to plaintiff judgment thereon, against defendant Freeman, in the sum of $775.07, or such other sum as the court may adjudge to be justly due, with interest and costs. Plaintiff further prays for a decree against defendant Falk J. Younker, adjudging plaintiff’s bill of sale, Exhibit CC, as prior, superior, and paramount to the landlord’s lien asserted by defendant Younker as to all of said property set out in Exhibit BB, levied on by the sheriff, . . . ascertaining and fixing the value of plaintiff’s said property so levied on and sold under said landlord’s attachment proceedings, judgment, and special execution, and awarding judgment in favor of plaintiff and against defendant Younker, for the value so fixed, but not exceeding the balance of the unpaid purchase price -of the goods sold by plaintiff.
The trial court sustained a demurrer to this substituted petition, and dismissed the same upon the refusal of the plaintiff to amend. One ground of the demurrer was that the plaintiff was not entitled to the relief prayed.
The case as originally brought presented some debatable questions as to the priority of the respective liens of the parties, and these have been very fully discussed in plaintiff’s brief.
The demurrer was rightly sustained, and the order of the district court is Affirmed.