State Savings Bank v. Shinn

130 Iowa 365 | Iowa | 1906

Deemer, J.

In the year 1888 Kate L. Smith obtained title to the lot in question by devise from her father, and in January of the year 1902 conveyed the same to plain-' tiff by warranty deed; the consideration being $8,500. In August of the year 1897 Katy and Mary Dolan obtained judgment before a justice of the peace against Mrs. G. ,B. Smith for the sum of about $90. This judgment was transcripted to the district court of Harrison county. Neither this judgment nor the index thereof refers to Kate L. Smith, nor do either show that Mrs. G. B. Smith was the wife of any particular Smith, save as the name itself serves to distinguish the'individual. November 11, 1903, execution issued upon this judgment, which was levied upon the. property, and pursuant to proper notice the same was sold to the plaintiff in execution for the sum of $145.75. Certificate of sale issued in due course, and this action is to restrain the issuance of a deed.

The testimony shows that Kate L. Smith is the daughter of one Willard Bump, from whom she obtained title to the property, and that she is the widow of one G. B. Smith. Plaintiff’s attorney and one of its stockholders knew, when negotiating for the property, that Mrs. G. B. Smith was the wife of G. B. Smith, who was then alive, and that her correct name was Kate L. Smith. He also said that there was another G. B. Smtih in Missouri Valley at this time and another Mrs. G. B. Smith, and that he knew the judgment above referred to was against Mrs. G. B. Smith, and- presumed it was intended to be against “ Mrs. G. B. Smith here referred to.”

T 1. Judgments: erty STanoSier name. Plaintiff contends that the judgment upon which the execution issued never became a lien upon the property, and that it purchased the same free from any claim of the judgment creditors. The record title to the property wfien plaintiff purchased was-in Kate L. Smith; and there were no judgments of record against any such person, nor was there an index to any such judgment. There was, however, a judgment against Mrs. G. B. Smith, which as we understand was properly indexed; but there was nothing of record showing that Kate L. Smith and this Mrs. G. B. Smith were one and the same person. Recordation and indexing of instruments and judgments is provided for in order that bona fide purchasers and incumbrancers having no actual notice may be protected; and it is generally held that failure to docket or index a judgment does not wholly destroy its effect as a lien. Wheeler v. Heermans, 3 Sandf. Ch. (N. Y.) 597; Appeal of York Bank, 36 Pa. 458; Cushing v. Edwards, 68 Iowa, 145; Fuller v. Nelson, 35 Minn. 213 (28 N. W. 511) ; Buchan v. Sumner, 2 Barb. Ch. (N. Y.) 165, s. c. 47 Am. Dec. 305. The object of the docket and index is to apprise intending purchasers or incumbrancers of judgment liens. Cummings v. Long, 16 Iowa, 41. Bor some purposes judgments are valid as soon as rendered, and, even if improperly indexed, they are valid between the parties, and as to every one save tona fide purchasers or incumbrancers. Gordon v. Rixey, 76 Va. 694, and casqs hitherto cited. In the present case there was a judgment against Mrs. G. B. Smith, which was properly procured, and plaintiff through its agent and attorney knew that it was intended to be against Kate L. Smith, and that Kate L. Smith and Mrs. G. B. Smith were one and the same person. In such circumstances it is in no position to say that there was no judgment and no lien upon the land. Delavan v. Pratt, 19 Iowa, 429; Peterson v. Little, 74 Iowa 223; Cushing v. Edwards, supra; Howe v. Thayer, 49 Iowa, 154; Sterling v. Early, 69 Iowa, 94; Balm v. Nunn, 63 Iowa, 641; Markham v. Buckingham, 21 Iowa, 494; Ætna Co. v. Hesser, 77 Iowa, 381; Appeal of York Bank, 36 Pa. 458; Appeal of Stephens’ Ex’rs, 38 Pa. 9; Craig v. Setrell, 9 Grat. (Va.) 131; Thomas v. Desney, 57 Iowa, 58.

Counsel’s argument is based upon the proposition that as between the parties thereto the judgment never became a lien upon Kate L. Smith’s property, and that, no matter what plaintiff’s knowledge, it purchased the property free from any claim or lien of the judgment creditor. This position is fallacious. A judgment may be a lien as between the parties, although not properly indexed. Jenny v. Zehnder, 101 Pa. 296.

2. Execution ' quacy of price, II. The property levied upon, was worth from $12,000 to $15,000, and was .sold for a little over $145. The sale was in all respects regular unless it be for inadequacy of bid, or because of failure of the sheriff to adjourn the sale for want of bidders.

It is argued that the sheriff should have looked for other property belonging to the judgment defendant before levying upon the valuable property he did take. There is no showing that Mrs. G. B. Smith had any other property, and the record discloses that he was directed by the plaintiffs in execution to'levy upon this particular property. It consists of a single lot upon which is a valuable building about one hundred feet long by twenty-five feet wide, fitted up for a banking business. At the sale the sheriff offered it in as small subdivisions as possible, and while he might in his discretion have adjourned the sale for want of bidders he was under no obligation to do so here, for all prior proceedings, notices, etc., were in strict conformity to law. Mere inadequacy of price is not ground for setting aside a sheriff’s sale; and in this case that appears to be the only reason for interfering therewith. Griffith v. Milwaukee Co., 92 Iowa, 634; Peterson v. Little, supra.

As plaintiff had actual notice of the judgment, and constructive, if not actual, notice of the sale, it should have attended the same and protected its interests. Bailing in this, it may still protect itself by redeeming from the sale, unless by its own laches it has waived or forfeited its right to do so. And, while the sheriff might in his discretion have adjourned the sale because the amount offered was grossly inadequate, there is no reason here for setting it aside for failure on the part of the sheriff to exercise his discretion. The sale was for a judgment creditor, and he was not hound to bid more than enough to satisfy his claim. And, if the rule we have announced does not apply, a judgment creditor for a small amount might not be able to collect his judgment because of inability to raise enough money to bid on the property. The cases relied upon by appellant are not in point. We shall not review them, for none seem to involve-the exact question now before us.

There is no reason for disturbing the sale, and the decree must be, and is, affirmed.