107 Iowa 717 | Iowa | 1898
Lead Opinion
In April, 1890, Mrs. Lonisa Grimsley purchased of Eliza Malcolm the front fifty feet of three lots in the city of Keokuk, which are duly described, for one thousand six hundred and fifty dollars. Of that sum Mrs. Grimsley paid six hundred and fifty dollars, and received a contract for the conveyance of the property, which she caused to be made on her part in the name of her brother, George W. Messenger. She afterwards erected a house on the property, and upon the full payment of the purchase price a deed for the property was executed to her brother, in February, 1892. ILe died testate, and his will, which was duly probated, recited that he held the legal title to a house and lot in the town of Bonaparte, in Van Burén county, and a title to another house and lot in the city of Keokuk, and a certificate for five shares of stock in the Farmers’ & Traders’ Bank in Bonaparte, in trust for his sister, Louisa Grimsley, subject to an indebtedness to him from her of four hundred dollars, and directing the transfer to her, her heirs and assigns, of the property described, on the payment of the sum specified to his estate.' The report of the executrix of the decedent, who is also a defendant in this action, shows that she had offered to transfer the certificate of stock and to convey the real property to Mrs. Grimsley upon the payment by her of the four hundred dollars, but that the latter had declined the offer, and had not paid the money. Thereupon the executrix was ordered to transfer the certificate of stock and convey the real property to the defendant George Ii. Messenger, who' is the residuary legatee or devisee of the will, to be held by him subject to any interest which Mrs. Grimsley had therein; and that was done. In December, 1893, Evans & Sheppard obtained in the district court of Lee county a decree against Mrs. Grimsley for forty-three dollars and costs of suit taxed at fifteen dollars, and foreclosing a mechanic’s lien therefor on the Keokuk property in question. In April, 1891, a special execution for the sale of the pniperty was issued, and it was advertised for sale. On the tenth day of May, 1891, Mrs.
It is suggested that there may be other claims against the Keokuk property, but the evidence fails to show that such is the case, and the burden is on the plaintiff to establish her right to the relief she demands.
It follows from what w© have said that the property which the plaintiff claims through the sheriff’s deed is subject to the payment of the four hundred dollars due to Messenger, with interest, and the cause will be remanded to the district court for the purpose of ascertaining the amount due to him, and to provide for the transfer of the legal title to the property to the plaintiff upon the payment of the amount found due.- — -Reversed.
Dissenting Opinion
(dissenting).
I do not concur in the conclusion of the majority. Each party seeks to redeem from the other, not under the statute, but by virtue of the equities in his favor. I think the equities are with the defendant George Messenger. He was not a party to- the foreclosure proceeding, and nothing has occurred to cut off.or abridge his rights; therefore he has a right to protect the trust title, unless there are superior equities in favor of the plaintiff. Plaintiff’s title is based upon a purchase at execution sale for the consideration of thirty-one dollars and seventy-two cents of a property worth a very much greater sum. While this gross inadequacy of consideration may not vitiate the sale, it is certainly proper to be considered in determining the