Bristol Sav. Bank v. Judd

• Decision Date: 11 February 1902
• Citation: 89 N.W. 93,116 Iowa 26
• Parties: BRISTOL SAV. BANK v. JUDD ET AL.
• Court: Iowa Supreme Court

116 Iowa 26

89 N.W. 93

BRISTOL SAV. BANK

v.JUDD ET AL.

Supreme Court of Iowa.

Feb. 11, 1902.

Appeal from district court, Pottawattamie county; Walter I. Smith, Judge.

On June 24, 1891, C. B. Judd executed to the Kimball-Champ Investment Company his note for $650. This was the balance due on a previous indebtedness, for which it was given in renewal, secured by a mortgage on lot 6 in block 3, and lots 2 and 8 in block 5, in an addition to Council Bluffs known as the “Twin City Place.” Thereafter the note and mortgage were acquired by the plaintiff. The mortgaged property subsequently passed to W. H. Knepler as assignee of the Judd-Wells Company, and it is alleged in the petition that from him the World Publishing Company purchased it, and, as a part of the consideration, assumed and agreed to pay said mortgage. Judgment and a decree of foreclosure were demanded against said company. Its answer is a general denial, and an averment that the agreement contained in the deed, if made, was ultra vires. Judgment and decree were entered as prayed, and the company appeals. Reversed.Hall & McCulloch, Finley Burke, and C. B. Aitchison, for appellant.

Jacob Sims, for appellee.

LADD, C. J.

The ownership of the mortgage by plaintiff, and of lots covered thereby, by the assignee of the Judd-Wells Company, is not questioned. A deed thereof, purporting to be from the assignee to the World Publishing Company, containing the clause that the latter “assumes the payment of all incumbrances of every kind against said premises,” dated August 1, 1891, was duly recorded two days later. It is admitted that no order appears of record for the sale of this property by the assignee, and there is no pretense that any notice thereof was published. Section 2127 of the Code of 1873, then in force, reads: “Any assignee * * * shall have as full power and authority to dispose of all estate, real and personal, assigned, as the debtor had at the time of the assignment, * * * but no sale of real estate belonging to said estate shall be made without notice, published as in case of sales of real estate on execution, unless the court shall order and direct otherwise.” It will be observed that the order dispensing with notice was to be by the court, and, of course, a judge not sitting as a court was without authority to make it. Prosser v. Prosser, 64 Iowa, 378, 20 N. W. 480. Further, by section 3784 of the Code, which is a re-enactment of the law as it formerly stood, “all judgments and orders must be entered on the record,” and ordinarily the record is the best and only proof of their existence. Callanan v. Votruba, 104 Iowa, 672, 74 N. W. 13, 40 L. R. A. 375, 65 Am. St. Rep. 538;Christie v. Insurance Co., 111 Iowa, 177, 82 N. W. 499. Some courts, even in the absence of statutory requirements, have held that an order of court, to be of any validity, must be entered of record; and certainly, under the language of the section quoted, such orders should appear of record in order to be accepted as having been made by the court. See Medlin v. Platte Co., 8 Mo. 235, 40 Am. Dec. 135;Partridge v. Morgenthau, 157 Ill. 395, 42 N. E. 74; 14 Enc. Pl. & Prac. 341. Even the orders of a judge in vacation are to be forthwith filed and “entered by the clerk in the journal of the court in the same manner as orders made in the term.” Section 3846, Code. The evident purpose to be attained is not only to preserve by putting in enduring form what has been done, but also, as the record is to be read and approved, to ascertain definitely and declare precisely what orders and directions have been made and acted on. Possibly it would be too strict a construction of the statutes to hold that orders made by a judge in vacation may only be proven by the record, but we have no hesitation in saying even then that the record is the best evidence of such orders, and when not so entered very strict proof, if admissible at all, should be exacted. Baker v. Baker, 51 Wis. 538, 8 N. W. 289.

2. An application for an order for the sale of the lots dated before, but filed with the clerk six days after, the deed was signed, and three days after it was recorded, and also an alleged order of the judge found with it, were offered in evidence. These were entirely immaterial. As already noted, the order could only have been made by the court, and, to be of any validity, must have been entered of record.

3. It does not follow, however, that, because a deed is executed by an assignee without notice or the order of the court, no title ...