Wallace v. Berger, 25 Iowa 456

Wallace v. Berger

25 Iowa 456 | Iowa | 1868

Beck, J.

l. fraud : in judicial sales. The evidence fails to establish fraud in the sales by the sheriff or treasurer, either on the part of the officers, purchasers, or defendant Gaskill, who ciajras title thereunder. We are unable to arrive ai the conclusion that any bad faith was practiced by these parties in these transactions. The fact that these sales, and the title acquired thereby, may defeat plaintiff in his efforts to make his judgment out of the land, is not evidence of fraud, either absolute or constructive. Neither is there any evidence, calculated to satisfy a reasonable mind, that the purchase by Gaskill of part of the lands in controversy from Berger was fraudulent. There is not one fact proved by the whole evidence which is inconsistent with good faith. Doubtless Gaskill exhibits an *461anxiety to obtain a good title to the lands, and to hold them free from the lien of plaintiff’s judgment. He seems to have been quite diligent in his efforts to acquire such a title, but they are unaccompanied by fraudulent acts or concealments. The fact that a sale from Berger to G-asldll of the same lands, made some years before the sales under which he now claims title, was set aside by a decree of the court, at the suit of plaintiff, because of its fraudulent character, is insufficient to stamp the character of fraud upon the present transaction. It is not to be denied, that the record in that case is any thing but favorable to defendant G-askill, and we are disposed to give it the full weight to which it is legally entitled. In plain words, Berger and Gaskill, as disclosed by that record, made a bold and unsuccessful attempt to defraud plaintiff. But, in truth, this is the only evidence creating a suspicion against the bona fides of the transactions involved in the present suit, and is overcome by positive testimony of the absence of all intention, on the part of those concerned, to defraud plaintiff or others, and by the fact that all the circumstances are such as usually attend honest transactions of the character of those involved in this suit.

2. judicial equacy of4" pnceThe evidence fixed the value of the land sold by the sheriff at $1,600. It was sold for $261. It is claimed, that this is a gross inadequacy of price, and therefore a badge of fraud. It is not pretended that the sale was not fair and honest. Neither is it shown, that it is probable the land would have sold for a greater sum under any other circumstances. The sum realized from the sale was the fuff amount of the judgment upon which it was sold, together with interest and costs. The party making the purchase is charged with no effort to influence the officer or prevent competition. In fact, he was not present at the sale, but contented himself with giving his bid to the sheriff before the *462sale took place. In short, the sale was fair and honest. Whether inadequacy of price is sufficient of itself to set aside a judicial sale has not been determined by this court. It is not necessary to determine this question in this case, for the price is not so grossly inadequate as to require, on that ground alone, the interference of an equity court.

In Cavender v. Smith (1 Iowa, 306) will be found a reference to eases wherein sales were held not to be for grossly inadequate prices. The difference between the value of the lands and the prices for which they were sold is greater in many of those cases than in the case under consideration. So in Greenup v. Stokes, 12 Ill. 25, and Chotion v. McKolls, 20 Mo. 445, even greater inadequacy of price is held not to be in itself evidence of fraud. The fact that the taxes were unpaid, and that plaintiff held a judgment for a large amount which was a lien upon the lands, may have had an influence in preventing competition at the sale, and thus caused the lands to be sold for less than their value.

The sale of the lands for an inadequate price was not a fraud upon plaintiff. He was not injured, but in truth benefited thereby. He admits that he cannot enforce his judgment against the lands without redeeming from the sale. Had the price been greater it would have required a greater sum to redeem. He ought not to object to the sale which was thus to his advantage.

s. Sam : en masse: presumption. The land was sold in a body. This is urged as an evidence of fraud. The sheriff was required to sell no more of the land than was necessary to satisfy the , ° J execution, and to offer but one tract or parcel thereof, if it was subdivided, for sale at one time. But it is not necessary to determine whether the non-compliance of the sheriff with these requirements would entitle the plaintiff in this action to the relief asked for. It does not appear that a less quantity than the whole tract *463could have been sold for the whole amount of the judgment. On the contrary, it seems that even the whole tract would not readily sell for that sum, as an adjournment of the sale was had for want of bidders. It is not shown that the land was subdivided into lots, although it appears that a part of it was' within the corporate limits of the town of Winterset. The land being but one tract, one subdivision according to the government survey, was not improperly sold in a body under the peculiar facts of the case.

4. tax saie : en masse: pleading. The plaintiff claims that the sale of the lands and lots for taxes was en masse, and therefore void. No such objection is made in the petition, and amended .. _ . _ - , _ petitions, upon which this case was tried ; and no relief is ashed for on that ground. It cannot, therefore, be considered.

In the foregoing view of the ease we arrive at conclusions which render it unnecessary to determine whether the lien of plaintiff’s judgment dates from its rendition in the District Court,1 notwithstanding the appeal in that ease to this court, and the modification o£ the judgment upon the case being remanded to the District Court. Unless the sheriff’s and tax sales are fraudulent and void, as claimed in the petition and amended petitions, the titles acquired under them are superior to the lien of plaintiff’s judgment, as claimed by him. As we cannot in this case set either of these titles aside, it becomes of no importance to determine at what date the lien of plaintiff’s judgment began. It is argued, that by the terms of the contract between Berger and Gaskill, the latter was to redeem the lands from the sale by the sheriff and treasurer, and therefore the title he claimed under these sales merged in the title he acquired from Berger, which is subject to the lien of plaintiff’s judgment. The evidence fails to sustain the fact here *464assumed; the correctness of the conclusion drawn therefrom need not therefore be examined. The evidence incontestably establishes the fact that Gaskill’s object in purchasing the certificates of the sheriff’s and tax sales, was to acquire a title to the property which should be paramount to all liens. His contract with Berger, neither by its terms or spirit, prevented him doing so.

"We are unable, as we have before stated, to discover fraud in the transactions complained of on the part of defendants. Whatever hardships the plaintiff must suffer on account of the sheriff’s and treasurer’s deeds, result from his own negligence. He has slept upon his rights. Holding a judgment, which he claims is a lien upon the property, for many years, he failed to enforce it, and suffered the time for redemption to expire under the sheriff’s and treasurer’s sales. Being aroused from his slumber, he asks of a court of chancery relief .which was offered him by the law and which he would not accept. Vigilantibus et non dormientibus suoourrant jura.

Plaintiff’s bill is dismissed, and a decree of this court will be entered accordingly.

Reversed.