Anderson v. Moline Plow Co.

• Decision Date: 23 January 1897
• Citation: 69 N.W. 1028,101 Iowa 747
• Parties: ANDERSON ET AL. v. MOLINE PLOW CO. ET AL.
• Court: Iowa Supreme Court

101 Iowa 747

69 N.W. 1028

ANDERSON ET AL.

v.MOLINE PLOW CO. ET AL.

Supreme Court of Iowa.

Jan. 23, 1897.

Appeal from district court, Sioux county; F. R. Gaynor, Judge.

Action to remove a cloud from the title to real estate. Decree for plaintiffs, and defendants appealed. Affirmed.L. D. Hobson and George W. Hewitt, for appellants.

G. W. Pitts, for appellees.

GRANGER, J.

1. The real estate in question is the N. E. 1/4 of section 13, township 94, range 47, in Sioux county, Iowa. Prior to March 6, 1885, it belonged to John McCormack. On that day he conveyed it by warranty deed to plaintiff Anderson. Since that time Anderson has conveyed it to George W. Karr, and he to William E. Shimer. Karr and Shimer have been made parties to the suit since its commencement by an answer and cross bill filed by the defendants. There is no dispute as to title of plaintiff or his grantees, unless the defendants have a lien on the land by virtue of an attachment levy made on the same day of the said transfer to Anderson. A question in the case is as to the validity of the levy of the attachment so as to constitute a lien. If there is no such levy, then defendants have no rights in the land, and it is, as we understand, the property of Shimer. The pleadings are quite voluminous, and the facts are numerous as bearing upon other questions considered in the case, but for the purpose of determining the validity of the levy some of the issues and most of the facts may be disregarded. McCormack was a resident of the state of Illinois, as was also the plaintiff Anderson, when the conveyance was made to Anderson. The attachments claimed to have been levied on the land issued out of the office of the clerk of the district court of Sioux county, in this state, in two suits commenced therein by the Moline Plow Company and George Enger & Co. against Foster Bros. and John McCormack, that being the firm name, and also against the members of the firm as individuals. Personal service was obtained except as to John McCormack, who, at the commencement of the suits and the issuing of the attachments, was in Illinois, and died there some 14 days after. The sheriff indorsed a return on the attachment, in which it is stated that he “levied upon and attached” the real estate in question. And in the incumbrance book in the office of the clerk is an entry reciting a levy of the writ on the land. And in a book entitled “An Index of All Liens” is an entry that the attachments are liens on the land. This action is to remove the clouds upon the title caused by these record entries.

2. The defect urged as to the levy of the attachment is that there was no notice of the attachment given to the person occupying or in possession of the land. There is a dispute of fact as to there being such occupancy or possession, but we have no doubt on that question. It clearly appears that there was, and the person was one Jacobs. The return states the conclusion, as we have indicated above, that he (the sheriff) had “levied upon and attached” the land. There is no statement in the return that he gave Jacobs, or any other person, notice of the attachment; and it is because of this that the levy is thought to be defective. Appellants contend that the statement of the conclusion as to the levy and attachment is a sufficient statement, and includes the particulars necessary to constitute the levy. By Code 1873, § 3010, it is provided that “the sheriff shall return upon every attachment what he has done under it.” It further provides: “The return must show the property attached, the time it was attached, and the disposition made of it by full and...