78 Iowa 476 | Iowa | 1889
1. Appellant’s contentions are that payment to the clerk did not satisfy the execution; that the thirty dollars was not in full of all costs, the sheriff having incurred $2.10 on the execution May 10; that no fraud had been perpetrated upon the plaintiff, and hence the sale cannot be set aside on the grounds of inadequacy of consideration; and that, no action having been brought within one year, the plaintiff is not noentitled to maintain this action. In the view we take of thcase, it is not necessary that we now determine whether payment to the clerk was a satisfaction of the execution or not.
II. The claim that there were costs due to the sheriff at the time he made the levy, June 18. we think is not well founded. The lands, levied upon May 10, did not belong to the defendant in execution, and were doubtless those referred to in Parkhurst’s letter oJune 16. We are satisfied that it was this letter thacaused the sheriff to cancel the levy of May 10, and hiclaim for costs thereunder, and make the levy of June 18. He taxes no costs in his return for the levy of May 10. No person claims anything under that levy. It follows, therefore, that the thirty dollars, paid to the -clerk on June 2, was equal to the full amount due on
III. Appellant’s next contention is that no fraud was perpetrated upon the plaintiff, and therefore the sale cannot be set aside for inadequacy of consideration. We may add to what is already stated, touching the action of the sheriff, that the letter of June 16 informed him of the payment to the clerk, so that, when he made the levy of June 18, he not only knew there were no costsdue to him, butthatthe full amount of the execution had been paid to the clerk. In the letter of May 22, the sheriff was requested to send an itemized bill of the costs, with an assurance that it would be paid at once, and requested to make no further expense. He answered this with a statement of the costs in gross, and, without-any notice to plaintiff’s attorney of the levy of June 18, proceeded to make the increased costs,- and to sell the lands. Walker knew of the payment to the clerk as early as June 10, for on that day he received his twenty-two dollars, and yet he permitted, if he did not direct, the levy of June 18, and was the purchaser at the sale under it of about one thousand acres of land, worth from five to ten thousand dollars, for $16.35. The only justification offered is the assertion that plaintiff was trying to beat the sheriff out of his costs by paying the ■money to the clerk. Parkhurst’s letter does not indicate such a purpose. Payment was made to the clerk because he sent an itemized bill, which the sheriff had omitted to do. As no costs had accrued to the sheriff at the time of payment to the clerk, we fail to see how
IY. It is contended that, as no action or motion was brought within one year, plaintiff is not now entitled to maintain this action. Notice was given to the plaintiff’s attorney of the levy of May 10. This being on lands of another than the defendant in execution, plaintiff’s attorney might well anticipate that the levy would be cancelled, as it was. Having informed the sheriff of the payment to the clerk, he had no reason to expect that the levy would be made ; surely not such a levy and sale as was made. It should require a very strong showing of laches to justify a court of equity in denying this plaintiff the right to assert its title as against the defendant’s sheriff’s deed. In this connection it is claimed that on the faith of plaintiff’s silence defendant expended money in procuring and recording the sheriff s deed. The defendant’s faith does not seem to have been very great. It does not appear that in all the time that has transpired since he procured the sheriff’s deed he has ever done anything else about the lands, but get and record the deed. We conclude, upon the whole case, that the decree of the district court should be
Affikmed.
