Twogood v. Stephens

19 Iowa 405 | Iowa | 1865

Lowe, J.

There is no material disagreement about the facts, except that which relates to the charge of fraud, as specified in the foregoing statement. And as to that, we unite in the opinion that the same is not adequately and satisfactorily established by the testimony.

Assuming then, the Iona fides of the transaction between Stephens and Clark, and looking at the facts attending the same, in connection .with the other granted facts in the case, we ask, what are the respective rights and equities of" the parties ?

i. uien: fnte’rest1.6 2 vendor dee:yi?i> feiture. First, as to the status and rights of the plaintiff: Under the statute of this State, his judgment was a lien upon the equitable interest of Stephens in the premises, vendible under an execution, but subordinate to the vendor’s lien and the homestead claim, if such a claim existed. The invalidity of’ the sale of this interest, by the sheriff under execution, to the plaintiff, is insisted upon, first, because at the time thereof Stephens jja¿ nQ jntereg^ iegai or equitable, for the reason that he had failed to comply with his contract in making the required payments, and thereby had forfeited all the equitable interest which he had in the land. The reply is, that while this might have been so by a disaffirmance of the contract on the part of the school fund commissioner, yet he did not do so, but elected to affirm and enforce the contract at law, which kept alive and made effectual Stephens’ equitable interest until extinguished by foreclosure and sale.

Ss*S??ttdS 9pK.of Secondly, it is claimed that the lands with the improvements thereon were worth some $3,600; that they were altogether regardless of their legal subdivision for the amount of plaintiff’s judgment, which bore no equitable proportion to the value of the property. It may be replied to this that the legal title of the property was not, at the time of the sale, in Stephens, the execution defendant; that his interest was not only an equitable but a contingent one, liable at any time, and especially at this time, to be extinguished by a declaration of forfeiture on the part of the school fund commissioner under the terms of the contract of sale. Not only so, but plaintiff’s judgment lien, under which he sold, was unavailable to him without first paying off the school fund claim of $941, more or less, and it was, moreover, subject to the homestead right. Under these circumstances equity would hardly require the plaintiff in execution to bid anything more than the amount of his claim and costs, nor can we conceive how Stephens, the defendant in the execution, was prejudiced by such a sale; for if the land had been put up in parcels, no cautious or prudent man could have bid more than the amount of the Twogood judgment, when such purchase was liable to be defeated at any moment thereafter by a forfeiture. Twogood had no title, and could not get one for a year, under the statute, in order to give the judgment debtor and creditors an opportunity to redeem; during which time it was competent for the school fund commissioner to do acts under the contract which would have rendered Twogood’s purchase at sheriff’s sale a barren investment.

_re írora’ven’dor’ But Stephens’ equitable interest in the property was not redeemed from said sale. A sheriff’s deed thereof was made to Twogood at the end of the year. After this the commissioner, instead of forfeiting, affirmed and enforced the contract with said Stephens, by suit and judgment. This act of the commissioner rendered Twogood’s purchase at sheriff’s sale available to him, and he became, at once, vested with all of Stephens’ equities in said lands, subject to the commissioner’s judgment. Understanding his liability in this respect, he makes a tender of the amount of this judgment to the board of supervisors, as before stated, which was refused. This tender he offers to make good, and this is all that he could do at the time to preserve his rights. '

Now, let us see what are the rights of Philip Clark, and what is the legal position he occupies in this transaction. He was a creditor, also, of Stephens, to the amount of $655. To secure this claim, he offered and undertook to purchase of Stephens, his entire equitable interest in all this land, including the homestead of forty acres. He put in his own claim, and assumed and paid off the school fund judgment against Stephens, and took from the board of supervisors, a certificate of purchase entitling him to a deed from the State for the land. But what did he in fact get, in legal contemplation, by his purchase? He did not get the homestead right of Stephens, because the wife did not join in the sale, and now sets up in this proceeding her claim thereto. He did not get Stephens’ equitable interest, for all that had already been extinguished, by the sheriff’s deed to Twogood, except the homestead right. He claims, to be sure, not to have had any notice of the Twogood judgment, and the proceedings thereunder. But it is clear, that he was affected with constructive notice thereof, by the court record. As he is not implicated, however, in the charge of fraud, he has a right to get back the money he paid in discharge of the school fund claim, with interest thereon up to the date of Twogood’s tender.

As respects the rights of Stephens and wife, they consist in holding the homestead of forty acres, subject to pay any balance there may be on the school fund judgment after first exhausting the other land.

The decree in this case should determine and settle the rights of the parties as above indicated.

That is to say, it should order the plaintiff to make good his tender and pay the amount to the clerk of the court for the benefit of Philip Clark. It should cancel and set aside the certificate of purchase heretofore issued by the clerk to the said Philip, and a new certificate of purchase issued to Twogood for all the land aforesaid, except the forty acres, constituting Stephens’ homestead, provided the said Clark shall, within twenty days, elect to take the same in satisfaction or compensation for the school fund claim, which he had tendered and paid. If, however, he should express an unwillingness to do so, then the school fund judgment, aforesaid, to be opened up and an execution to issue thereon and levied upon the property, exclusive of the homestead, first, the object being to determine the question whether such levy and sale will bring the amount of the school fund judgment, without including the homestead property. If it does, upon the bid of Twogood, whose payment on the tender already advanced is to be credited thereon, then he, Twogood, shall have a certificate entitling him to a deed from the State for the land purchased, and Stephens a certificate for a deed to the forty acres constituting the homestead.

But if Twogood shall be unwilling to bid the amount of the school fund judgment for the property levied upon, and some other person will, that person shall have the certificate of purchase.

5 homj.’ oritaof sale‘ If it should be supposed that such an order in the decree, would interfere unjustly with Twogood’s vested rights acquired at the sheriff’s sale, when he purchased Stephens’ equitable interest, the answer is, that the propriety of such an order is apparent from two considerations, first, that it is the policy of the law, not to allow a homestead to be levied upon and sold, even if ptherwise liable, until all other property of the defendant in execution, is first exhausted; that this homestead right is equal, if not superior in dignity to any other legal or vested right, and should not be disturbed, short of a fair sale to the highest bidder, of all the other property. The second consideration is, that Twogood, after he had obtained bis deed from, the sheriff, of Stephens’ equitable interest in said land, which was about the first of November, 1860, waited till the 5th of January, 1864, before he offered to pay to the school fund commissioner the balance of the purchase-money due on said land. It is quite probable that if greater promptitude in tbis respect bad been observed, this controversy would have been avoided. The delay, however, though great and unreasonable, is not, perhaps, to tbe extent of forfeiting bis rights, but bas tbe effect of lowering tbe grade of bis equities, in a court of conscience, below Stephens’ homestead right; and if he is not willing to pay as much as anybody else for the land in question, in order to protect the homestead, then he should surrender the benefits of his previous purchase at sheriff’s sale of Stephens’ equities.

Having said thus much parenthetically, by way of explanation, we proceed further to say, on the other hand, that if neither Twogood, or any one else, under the qualification suggested, is willing to bid off the land for tbe amount of the school fund judgment, then tbe property shall be sold for tbe best price it will bring, to tbe highest bidder, and tbe residue shall be made from a sale of the homestead, the surplus, if any, to be paid to Stephens.

With this modification, the judgment below will be affirmed, the costs of court below, as well as that of tbe appeal, to be paid in equal parts by Twogood, Clark and Stephens.

Affirmed.