6 N.W. 571 (Iowa 1880), McCleary v. Ellis

Citation:6 N.W. 571, 54 Iowa 311
Opinion Judge:DAY, J.
Attorney:Hoffman, Pickler & Brown, for appellant. Tatlock & Wilson, for appellee.
Case Date:September 21, 1880
Court:Supreme Court of Iowa

Page 571

6 N.W. 571 (Iowa 1880)

54 Iowa 311




Supreme Court of Iowa, Des Moines

September 21, 1880

          Appeal from Louisa Circuit Court.

         THE plaintiff filed a petition as follows:

         "1. That on the 5th day of March, 1879, one I. C. Freeland recovered a judgment against him in this court for the sum of $ 353.15, and costs of suit, including $ 35 attorney's fees. * * * *.

         "2. That upon said judgment the said Freeland procured an execution to be issued; that under said execution the defendant Ellis, as sheriff, has sold unto said defendant I. C. Freeland the petitioner's interest in the following described real estate, situated in said county, to-wit: * * *.

         "3. Petitioner represents that the sale of said real estate by defendant Ellis, as aforesaid, has cast a cloud upon his title thereto, and works to him an irreparable injury.

         "4. He further represents that all the right, title, and interest he has in and to said real estate is by virtue of a voluntary conveyance made by his father, Abraham McCleary, to petitioner, a copy of which is hereto attached and made a part thereof; that under said deed he has gone into the possession of said real estate, and has since the time of his taking possession thereof used and occupied the same as his homestead, together with his wife and family, he now being the father of children; that he owned no interest in said land subject to execution, and that said I. C. Freeland, defendant, had legal notice thereof, and that said sale by said sheriff conveyed no interest in or to said real estate; that unless restrained said defendant Ellis will, in due time, execute his sheriff's deed for said premises; that petitioner is without remedy save in a court of equity. He, therefore, prays that said defendant Ellis be enjoined from further proceeding under said execution, and from executing said deed for said premises, and that said sheriff's sale for said property may be set aside, and that he may have such other relief as to the court may seem meet."

         Attached to the petition are copies of the judgment, execution, return and certificate of purchase. The deed referred to in the petition, under which plaintiff claims the property in controversy, is as follows:

         "Know all men by these presents, That I, Abraham McCleary, of the county of Louisa, of the State of Iowa, do give my son, John McCleary, all my interest in the following lands. * * * To have the above described lands his lifetime, and to go to his children at his death, but if he dies without children, then the above described land to go to his brother George McCleary, and at his death is to go to his brother's children--that is, Geoege McCleary's children, but if George dies without children, it is to go to his sister's children. It is expressly understood that he shall not part with it nor sell it, nor shall any person sell it for him or for debts whatsoever."

         The deed described one hundred and ninety acres. The defendants demurred to this petition. Afterward the defendant filed an offer to release as follows:

         "The defendant Freeland hereby offers to release from the operation of the sheriff's sale the homestead of plaintiffs, John McCleary and wife, as provided by law, and to the extent of the law exemption."

         The court sustained the demurrer. The plaintiff declined to further plead, and judgment was rendered against him for costs. The plaintiff appeals.


         Hoffman, Pickler & Brown, for appellant.


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