Wood, Bacon & Co. v. Young

38 Iowa 102 | Iowa | 1874

Day, J.

— From the foregoing statement it appears that plaintiffs claim under a mortgage from Thomas 0. Parker, who derived title from Isaac Yirden, the grantee of Ona IT. Woodward.

Woodward acquired his title on the 2d day of October, 1856, and he conveyed to Isaac Yirden, on the 26thof Jufy, 1858.

Whilst the land was owned by Woodward, to-wit: July 10th, 1857, an attachment was issued at the suit of S. E. Brainard, and was, on the 13th day of July, 1857, levied on the land in controversy.

On the 13th day of March, 1858, S. E. Brainard recovered judgment against Ona H. Woodward, and on the 28th day of May, 1858, he assigned the same to Edmund Miller. On the 6th day of November, 1858, the land was sold by the sheriff under said judgment, to Hosford and Miller.

When Woodward conveyed to Yirden, this judgment existed, and, if valid, was a lien upon the land in question, and Yirden, and the subsequent grantees, took title subject thereto. The question principally considered by counsel, is respecting the effect of this judgment and sale.

x. practice: appearance: jurisdiction, It is claimed by appellant that the court had no jurisdiction of the person of defendant: and that the judgment . . t T , is void. It may be conceded that tiie original notice was defective, and that the service thereof was insufficient.

At the first term of court after the service of notice, O. I). Gray, attorney of Woodward, filed a motion to dismiss the action, because:

1. “ The defendant has not been served with notice in said action as provided by law.

2. “ The notice served upon defendant does not specify any time when the defendant is required to plead in said action.

3. “ Said notice is insufficient to hold the defendant to plead at any time.”

At the same term said Gray filed two motions to dismiss the attachment, one of which is founded upon the following grounds:

1. “ Said action was not commenced according to laxv by sendee of proper original notice.

2. “ The affidavit for the attachment was insufficient in law.

3. “ Defendant was never asked for any security concerning the note sued on.

4. “ Defendant never refused to give such security.”

The other motion is upon the following ground: “ That the sheriff’s return to the writ does not show that the property taken by the writ, was taken as the property of said defendant.”

By filing these motions to dismiss the attachment the defendant made a general appearance, and waived the defects in the notice. By these motions the court was called upon to entertain and determine questions, which could be considered only after jurisdiction had attached. A motion which calls into action the powers-of a court for any purpose, except to decide upon its own jurisdiction, constitutes a full appearance, JJlmer v. Hiatt, 4 G. Greene, 439; Deshler v. Foster, Morris, 404; Chittenden v. Hobbs, 9 Iowa, 418.

It is urged, however, that the court did dismiss the action, and that no petition was afterward filed. The record of the court’s action is as follows:

2.; — —: —: an action. “Now, to-wit, December 23d, 1857, comes the said defendant by Charles D. Gray, his attorney, and argues the motion heretofore filed, to dismiss the action in the above entitled cause, and also comes the plaintiff by W. M. Newton, his attorney to answer thereto. The motion being upon the ground of irregularity of notice, it is sustained by the court. Motion is also produced from the files of this court by the said C. D. Gray, to dismiss the attachment in this cause, which motion is overruled by the court, with leave to the officer to amend his return of writ of attachment; when on motion of the' said W. M. Newton, the cause is ordered continued until the next term of this court at the cost of plaintiff, which is accordingly done.”

Whilst this record is a little confused, yet it is apparent from it that the court intended nothing further than merely to determine that the original notice was irregular. And so it seems to have been understood by both court and counsel, for after this motion was sustained the defendant’s attorney presented his motion to dismiss the attachment, and plaintiff’s attorney made a motion for the continuance of the cause, which was sustained by the court. The cause being thus continued the plaintiff caused to be served another notice upon defendant of the pendency of the action.

On the 1st of March, 1858, the defendant’s attorney filed another motion to dismiss the attachment, as follows:

1. “ The petition for the attachment is not properly verified.

2. “ The only writ of attachment in said cause was issued, and served by the sheriff before the action was properly and legally commenced.

3. “There is no proper attachment bond filed in this action.”

' By the filing of this motion, the defendant also made a general appearance to the action, so that the j nrisdiction of the court over the person of the defendant is unquestionable.

3. judicial sale: mortgage: purout notice. Next it is insisted that this judgment was not properly indexed when Woodward sold the land to Virden. T , . ... in the view which we take oí the case this question becomes immaterial.

The sheriff’s sale under this Brainard judgment occurred on the 6th day of November, 1858. There is clearly no evidence that the judgment was not indexed at that time. Plaintiff’s mortgage was not recorded in Blackhawk • county until long after this sale, to-wit: February 26th, 1859.

If plaintiff’s mortgage had even been executed before the judgment, and not recorded before the sale, it would not avail against a purchaser at the sheriff’s sale without notice. A fortiori can it not avail, being executed after the rendition of the judgment. See Gower v. Doheney, 33 Iowa, page 36 and cases cited.

_. gale en masse. Next it is objected that the sale is invalid because made en masse. The tract in dispute is an eighty acres lying in a body. The sale was made in November, 1858. It does no(; appear that the execution defendant, or those claiming under him were in any manner injured by the mode of sale adopted. This action was not commenced until September 1867, and it was not until April, 1870, more than eleven years after the sale, that this objection was made. It cannot therefore now avail. See Cunningham, v. Felker, 26 Iowa 117; Stewart v. Marshall, 4 G. Greene 75.

It is further claimed that the price paid was grossly inadequate. The evidence shows that the land was worth from four to five dollars per acre, being from $320 to $400 for the whole tract.

s.-: aciesideration. The amount for which it was sold, including sheriff’s costs, was about $60. It was subject to the prior lien of the Edinger mortgage, for $100 and accrued interest. The sum realized at the sale was not, therefore, so inadequate as to constitute a ground for setting the sale aside. See Hill v. Baker, 32 Iowa 302; Cavender v. The Heirs of Smith, 1 Iowa 307; Wallace v. Berger, 25 Iowa 456, and cases cited.

estoppei. It is further urged that Hosford and Miller should be estopped from asserting any claim under the sheriff’s sale because the delay in taking a sheriff’s deed. The pubHcity of the proceedings in a sheriff’s sale is constructive notice of the rights of the purchaser for twenty days after the expiration of the time of redemption. Code of 1851, § 1947. If plaintiffs had acquired their interest in the ‘ property after the expiration of that period, they might complain of the delay in taking the deed, but, as they did not, they are not injured thereby.

Hosford & Miller were made parties to the suit instituted fort he foreclosure of the Edinger mortgage, and a decree was entered barring and foreclosing all their right title and interest in the mortgaged premises.

It is claimed that by this decree, whatever interest they acquired under the Brainard judgment was cut off. But upon appeal to the Supreme Court this decree was reversed.

7.--:-: judgment: bona fide purciiaser. It is claimed, however, that as no supersedeas bond was filed, and the land was sold under execution to John H. Leavitt, who assigned his certificate to E. 3L Ware, to whom the sheriff executed a deed, and ' , , xr . . „ who afterward soid his interest to Hostord & Miller, Leavitt was a Iona fide purchaser, and his title was not affected by the reversal. Code of 1851, § 1993. But this provision is forthe benefit of the purchaser at a judicial sale or his grantees. They do not claim the benefit of this provision, but base their title upon the sale under the Brainard judgment.

Lastly, it is claimed, that Hosford & Miller, at the time of Young’s purchase from Miller, relied alone upon the title derived from Ware under the foreclosure of the Edinger mortgage. If this were admitted, that fact would not estop them from subsequently relying upon a title derived from a different source. And that when this suit was commenced, Miller and Young relied upon the title derived under the Brainard judgment, is abundantly established by the fact that they set forth in their answer said judgment and the proceedings liad thereunder, as a reason why plaintiffs should not have the relief asked.

We conclude that the sale under the Brainard judgment, divested whatever interest plaintiffs acquired under the Parker mortgage, and that their petition was rightly dismissed.

Aeeirmed.