Stinson v. Richardson

48 Iowa 541 | Iowa | 1878

Day, J.

1. diecharge of I. In April, 1872, James Stinson, husband of plaintiff, held a bond from one Dawkins for a conveyance of sixty acres of land, upon which Stinson had paid one thousand two hundred dollars or one thousand four hundred dollars, the proceeds of a former homestead. Dawkins had obtained judgment against Stinson for the balance due. Jesse Stinson and Frank Richardson also had judgments against James Stinson. James Stinson assigned the Dawkins bond to Richardson, the plaintiff, his wife, refusing to concur. In consideration Richardson agreed to pay the Dawkins judgment, the Jesse Stinson judgment, all back taxes, a team of horses and five dollars in money, and to release his own judgment. Stinson agreed to let Richardson have a horse worth sixty dollars to seventy-five dollars. The plaintiff refusing to concur in the sale, Richardson did not deliver the team. Richardson retained the horse Stinson let him have, j>aid the Dawkins and the Jesse Stinson judgments, and took possession of the land, except one house and a small garden spot. On the former trial the assignment as to the forty acres was set aside. Richardson was allowed for improvements thereon, and was charged with rents thereof, and the Dawkins judgment and part of the Jesse Stinson judgment were declared a lien on the whole sixty acres in favor of Richardson, who had paid them. The plaintiff now claims that the rents of the whole sixty acres, since the former trial, should be applied to dimmish Richardson’s lien for the judgments jjaid. The court allowed plaintiff’s claim as to the forty acres, the homestead, but denied the claim as to the remaining twenty acres. From this decision plaintiff appeals. In this respect the decree of the court below was right. The sale of the twenty acres was not affected by the former decree. Defendant was in possession of that under his purchase, which still remains undisturbed, and he ought not to be required to apply the rents and profits in extinguishment of his lien.

2_. tax title. II. The defendant Richardson, being in possession of all the land under his contract of purchase, furnished Defore money to buy in, for his use, certificates of tax sale on the land. Tax deeds have now been executed, and under these defendant insists that he is entitled to the land, or at least to the amount expended, with the ordinary penalties which would be due the county if the taxes had not been paid. The court allowed defendant the amount paid, with six per cent interest. From this judgment the defendant appeals. We think this action of the court is also correct. The defendant was in possession under an agreement to pay all back taxes. The amount which-he paid for certificates of purchase should be treated simply as so much paid in compliance with the terms of the contract upon his part, and for that sum, with six per cent interest from the time of payment, he was properly allowed.

III. The defendant refused to deliver the team because plaintiff would not ratify the contract. Stinson let defendant have a horse, under the agreement, and he still retains the same. The plaintiff asks that the value of this horse be applied in discharge fro tanto of defendant’s lien upon the homestead forty. We think plaintiff is entitled to this relief. Defendant has paid nothing but the judgments, and for them he has been subrogated to the lien of the holders of the judgments. It is true the horse belonged to plaintiff’s husband. She could not, in a direct action therefor, recover its value, but she is entitled to protect the homestead, and, in the event of the failure of her husband to do so, she may insist upon a proper allowance for all sums which should equitably go to release the lien upon the homestead. . As defendant did not deliver the team, he ought to account for the value of the horse. Upon plaintiff’s appeal the cause is reversed and remanded with directions to apply the value of the horse in reduction of the judgment liens.

Reversed.