Bristow v. Lange

• Decision Date: 05 May 1936
• Docket Number: 43353.
• Citation: Bristow v. Lange, 221 Iowa 904, 266 N.W. 808 (Iowa 1936)
• Parties: BRISTOW v. LANGE et al.
• Court: Iowa Supreme Court

266 N.W. 808

221 Iowa 904

BRISTOW v. LANGE et al.

No. 43353.

Supreme Court of Iowa.

May 5, 1936

Appeal from District Court, Calhoun County; M. E. Hutchison, Judge.

Action in equity by a creditor's bill to set aside a certain conveyance of real estate alleged to have been executed in fraud of creditors. The lower court granted the relief prayed. Defendants appeal.

Reversed and remanded.

Currie & Wilson, of Sac City, and Jacobs & McCaulley, of Lake City for appellants.

Diamond & Jory, of Sheldon, for appellee.

KINTZINGER, Justice.

This is an action in equity to set aside a deed to certain real estate in Calhoun county, Iowa, alleged to have been executed by the defendants, Henry Lange and Emma Lange, to their son Ernest Lange, on May 21, 1925, without consideration and for the purpose of hindering, delaying, and defrauding the grantor's creditors. It is an outgrowth of the land boom of the early twenties. On March 1, 1920, the defendant, Henry Lange, purchased of the plaintiff 240 acres of land in Jackson county, Minn., for $48,000. Of this purchase price, he paid $10,000 in cash, assumed two mortgages against the property aggregating $12,000, and executed his own note and mortgage of $26,000 for the balance, payable March 1, 1930. The mortgage contained an acceleration clause under which the entire debt could be declared due on failure to pay the interest and taxes when due. Evidence was offered showing defendants' failure to pay the taxes due in 1924. Plaintiff thereupon declared the entire amount due, and in February, 1925, he foreclosed the mortgage outside of court, by the process of " advertisement and sale" as authorized by the statutes of Minnesota. The real estate was sold thereunder to the plaintiff for $21,600, leaving a balance still due.

Thereafter, in February, 1931, plaintiff commenced an action at law, aided by an attachment against the real estate in question, against all of the defendants, in Calhoun county, Iowa, asking judgment against Henry and Emma Lange for the balance then due upon said note, with interest, and that it be declared a lien on the real estate.

In April, 1933, a personal judgment was entered against said defendants, Henry and Emma Lange, for $9,930.62. This judgment was never appealed from and is not questioned.

Thereafter, on May 15, 1933, plaintiff commenced this equitable action in Calhoun county, Iowa, against all defendants to set aside the deed to Ernest Lange on the ground of fraud against the grantor's creditors. The defense relied upon is that this action to set aside the deed was not commenced within five years after the execution of the alleged fraudulent deed, and is, therefore, barred by the statute of limitations, and by laches.

When plaintiff commenced his law action against the defendants Henry and Emma Lange, in Calhoun county, Iowa, he asked for and secured a writ of attachment against the real estate in question, alleging, as a ground for the writ, that the defendant grantor transferred the real estate to the defendant Ernest Lange without consideration and for the purpose of hindering, delaying, and defrauding his creditors; and that the equitable title to said real estate was in the defendant Henry Lange. The action for the balance due on the note was an action at law, and did not seek to set aside the deed in question.

Defendants demurred to the petition in the law action as being barred by the statute of limitations, as more than five years had elapsed between the execution and recording of the deed and the commencement of that action, alleging that plaintiff was entitled to no relief against the real estate levied on because an action to set aside a deed for fraud was barred by the statute of limitations and/or laches.

The demurrer was overruled, and defendants failing to answer, the court, on April 26, 1933, entered judgment against Henry and Emma Lange for $9,930.62, and ordered that the attachment lien against the property continue in force, pending the determination of an equitable action to set aside the deed, which the court authorized to be commenced within a reasonable time thereafter for the determination of the issue relating to the fraudulent character of the conveyance " to the end in view that in the event said issue * * * be determined in favor of plaintiff, that said premises * * * be subjected to the payment of the judgment herein rendered and entered."

The lower court decided all issues in favor of appellee. Hence the appeal.

I.

The only evidence showing the maturity of the note sued on in the law action before the date fixed in the note consisted of certified copies of the records of the foreclosure of the mortgage securing the note. These records show an acceleration provision in the mortgage under which the entire indebtedness became due on failure to pay interest or taxes when due.

The evidence tending to establish the foreclosure of plaintiff's mortgage against the Minnesota land consists of duly certified copies of the public records in the office of the register of deeds of Jackson county, Minn., showing such foreclosure by " advertisement and sale," as authorized by the laws of Minnesota.

The defendants alleged and proved the statutory law of Minnesota authorizing the foreclosure of mortgages by " advertisement and sale," and providing for the recording of all instruments in connection therewith in the office of the register of deeds in the proper county. The Minnesota statutes authorizing such foreclosure without court procedure are found in sections Nos. 9602, 9604-9606, 9612, 9613, 9618, 9620, 9622, 875, and 884 (Mason's Minn.St.1927). Certified copies of such records show that plaintiff's mortgage was foreclosed by " advertisement and sale" under these statutes in February, 1925, by the sheriff's sale of said land to plaintiff herein for the sum of $21,600.

Certified copies of the records of the register of deeds in Jackson county, Minn., relating to the foreclosure of said property by " advertisement and sale," and the Minnesota statutes were pleaded and admitted in evidence. Such statutes and evidence were objected to on the ground that the copies of such records were not authenticated as required by the act of Congress relating to the admission of evidence of court records in a foreign state.

Appellants contend, however, that the records of foreclosure proceedings by " advertisement and sale" in Minnesota constitute " public records," and that duly certified copies of such " public records" are admissible in evidence under sections 11290 and 11296 of the Code of Iowa 1931.

Section 11290 of the Code provides that " When the recording of any instrument in the office of any public officer is authorized by law, the record of such instrument, or a duly authenticated copy thereof, is competent evidence whenever, by the party's own oath or otherwise, the original is shown to be lost, or not belonging to the party wishing to use the same, nor within his control."

Section 11296 of the Code provides that " Duly certified copies of all records and entries * * * belonging to any public office, or by authority of law filed to be kept therein, shall be evidence in all cases of equal credibility with the original record or papers so filed."

Appellee contends that these statutes apply only to copies of records in public offices within the state of Iowa, and are not competent unless authenticated in the manner authorized by act of Congress providing, in substance, that " the records and judicial proceedings of the courts of any state or territory * * * shall be proven or admitted in any other court within the United States by the attestation of the clerk and the seal of the court annexed * * * together with a certificate of the Judge * * * or presiding magistrate that said attestation is in due form." Section 906, U.S. Revised Statutes (28 U.S. C.A. § 688).

The federal statute relied on relates to " judicial records" of the courts of other states, where there are no provisions by statute or judicial decision under the common law making them admissible. 22 C.J., 819; 22 C.J., 821; Garden City Sand Co. v. Miller, 157 Ill. 225, 41 N.E. 753, loc. cit. 754; Wilcox v. Bergman, 96 Minn. 219, 104 N.W. 955, 5 L.R.A.(N.S.) 938. As the copies introduced do not relate to judicial records of foreign states, the federal statutes are obviously not applicable. Section 11305 and section 11306 of the Code of Iowa 1931; Simons & Co. v. Cook, 29 Iowa 324; Austin v. Whitcher, 135 Iowa 733, 110 N.W. 910; Des Moines Sav. Bank v. Kennedy, 142 Iowa 272, 120 N.W. 742; Garden City Sand Co. v. Miller, 157 Ill. 225, 41 N.E. 753; 22 C.J. 821.

" As a general rule it is held that a certified copy of a public record or document given and certified by a public officer whose duty it is to keep the original is receivable in evidence, and this rule is very generally embodied in statutory provisions making such certified copies admissible, either generally or in certain specified instances." 22 C.J. 821.

In Austin v. Whitcher, 135 Iowa 733, loc. cit. 737, 110 N.W. 910, 911, this court passing on this question said: " Section 4635 [now section 11296] of the Code states that the duly certified copies of all records and entries or papers belonging to any public office, or by authority of law filed to be kept therein, shall be evidence in all cases of equal credibility with the original record or paper so filed. This section of the statute simply announces a rule which is generally recognized by all courts. 2 Elliott on Evidence, § 1480."

Elliott on Evidence referred to in the foregoing quotation says " In practically all the states of the union and by comity between the states, statutes providing that copies of records required by law to be...