Blake v. Black
| Decision Date | 14 December 1880 |
| Citation | 55 Iowa 252,7 N.W. 578 |
| Parties | BLAKE v. BLACK AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Bremer district court.
Upon petition of plaintiff a temporary injunction was allowed by the Hon. G. W. Ruddick, judge of the twelfth judicial district, restraining defendant Black from receiving, and the other defendant, Hanchett, sheriff of Bremer county, from executing a sheriff's deed under an execution sale made upon a judgment in favor of Black, and against certain defendants, whose names appear in the opinion. A motion made by defendants to vacate the order granting the injunction, based upon the allegations of the petition and record, evidence relating to certain judgments, and sales thereon, showing the claims and titles of the parties, was sustained. From the order dissolving the injunction plaintiff appeals. The facts of the case are fully stated in the opinion.
*578Gray, Dougherty & Gibson and Shiras, Van Duzee & Henderson, for appellant.
No appearance for appellees.
1. At a prior term an opinion was filed in this case affirming the decision of the district court dissolving the injunction. A rehearing was granted, and the case has been again submitted to us. Upon a reconsideration of the record we have reached a conclusion different from that announced in our first opinion, which was based upon a misapprehension of the facts. We will proceed to state, with particularity, the undisputed facts of the case as disclosed by the petition and records submitted upon the motion to dissolve the injunction. The defendant Black, being seized of the land in controversy, sold the same to one Ellis, and executed a bond obligating himself to convey the property upon certain payments being made, as provided for in the bond. Ellis assigned the bond to Von Ferber, who assigned to Charles Deitrick. Subsequent to the execution of this bond a mortgage conveying the land was executed to plaintiff Blake, and Van Duzee, which was foreclosed, and the land sold to the mortgagees upon a special execution issued upon the decree, and a sheriff's deed was executed to the purchasers. Who executed the mortgage does not appear in the record. Von Ferber and Charles and Catharine Deitrick and others were made defendants. Black and Ellis were not made parties.
After the sale upon this foreclosure decree, and before the sheriff's deed was executed to Blake & Van Duzee, Black commenced an action to foreclose the bond as authorized by Code, § 3329. Ellis, the several assignees of the bond, and Van Duzee and Blake were made defendants in this action. A decree of foreclosure was rendered against all the defendants except Blake, who had not been served with process, and the cause as to him was continued. This was after the sheriff's sale to Van Duzee and Blake, and before the sheriff's deed was executed to them. Upon the foreclosure decree in favor of Black the land was sold to him for about one-half the amount of the judgment, and before the time for the redemption under the statute expired Van Duzee and Blake redeemed from the sale, and the redemption money was paid by the clerk to Black. No question was raised as to the right of Van Duzee and Blake to make the redemption. After this, process was served upon Blake in the foreclosure proceeding against him, and a decree was entered cutting off his equity of redemption, but no personal judgment was entered against him. Thereupon another execution was issued upon the decree of foreclosure, and the interest of Blake in the land was sold thereon to Black. This action is brought to restrain the sheriff from executing and defendant *579Black from receiving a deed under this sale. The judge of the district court, upon the facts above set out, dissolved the temporary injunction.
2. We will inquire as to the rights of...
To continue reading
Request your trial