Switz v. Black

45 Iowa 597 | Iowa | 1877

Rothrook, J.

i. practice: parties': mortgage. I. The defendant Sully moved the court to strike out of both cross-petitions all those parts having rela^ion to the title to the lands purchased by him at the sa^ tax sa^e> because the petitions improperly joined different tracts and embraced matters not a part of the original cause of action, nor in any manner connected with the original suit.

This motion was overruled, and counsel for appellant now insist that the motion should have been sustained. We think the ruling of the court below was correct. There can be no question about its correctness as to the petition of Rieord. H.e was not a party to the original suit, and the other parties thereto, Black, Wetherell and Switz, made no objection as to misjoinder of parties. Rieord had the right at any time to commence an original suit in foreclosure, and it is entirely immaterial to the defendant Byrne in what manner the other parties are brought before the court. Wetherell was a party defendant to the original suit. ITis cross-petition was filed with leave of the court. His mortgage covered all three of tlie tracts of land, and we are unable to see how Sully could compel him to foreclose his mortgage by piece-meal, because he, or rather his grantee, claimed no interest in the land claimed by Switz. What possible prejudice it could be to Sully or to Byrne we are unable to determine..

Our attention is called by counsel to section 2663 of the Code, We fail to see any provision therein which would preclude a joinder of parties under the facts disclosed in this case.

2 vendor im?oeentdee: purchaser. II. It is insisted that Wetherell and Ricord, being mere mortgagees, have no right of action against Sully and Byrne. They certainly -have a right as mortgagees to show the invalidity of the tax sales, and to subject the ]an(j payment of their mortgages, and this is the effect of the decree of the court below, as we understand it. It is proper to observe that defendant Byrne is not offering to redeem from the mortgages.

III. The evidence satisfactorily shows that there was an unlawful combination of bidders at the tax sale, by which it was agreed that there should be no competition. The defendant Byrne, however, insists that he is an innocent purchaser of the land in question without notice of the fraudulent character of the sale.

It will be seen by the foregoing statement of facts that on the 11th day of November, 1873, when Sully, by Sankey, his agent, contracted to sell the land to Byrne, Sully was not the owner. ITe had conveyed to Carhart on the 25th day of February, 3873, and the deed of conveyance was filed for record March 4, 1873. Next we have a deed from Carhart by Sully, attorney in fact, dated May 1, 1874, which has not been filed for record, and which, if delivered at all, must have been after the filing of the cross-petition herein.

The trial in the court below was had in November, 1875, and Byrne then testified that he had lately received a deed, and there is enough in the evidence to satisfy us that he knew there, would be, or was, litigation about the title before he received his deed. He says: “When I heard it was going into suit to contest the title, I made up my mind I would pay no more until this matter was disposed of, so a good title could be made to me.”

The power of attorney from Carhart to Sully was made on the 8th day of July, 1874, filed for record September 1, 1874. It malíes no reference to conveyances already made by Sully.

It will, therefore, be seen that when Byrne made his contract with Sully the record of titles showed that Carhart was the owner, and at the date of the deed from Carhart by Sully, as attorney, the records did not show that Sully had any such power. The power afterwards made only covers deeds to be made in the future.

Under all these circumstances Byrne can make no successful claim that he is an innocent purchaser without notice. If he had examined the records of titles he would have seen that the party he contracted with had no title to convey, and that the attorney in fact who attempted to convey had no power to convey.

Affirmed.