Bull v. Gilbert

• Decision Date: 10 February 1890
• Citation: 44 N.W. 815,79 Iowa 547
• Parties: BULL v. GILBERT ET AL.
• Court: Iowa Supreme Court

79 Iowa 547

44 N.W. 815

BULL

v.GILBERT ET AL.

Supreme Court of Iowa.

Feb. 10, 1890.

Appeal from district court, Carroll county; J. H. MACOMBER, Judge.

This is an action in equity to foreclose a mortgage upon two quarter sections of land in Carroll county. Two demurrers to the petition were filed, which were sustained by the court, and plaintiff appeals. The facts appear in the opinion.J. W. Bull, for appellant.

Benjamin J.

Sallinger and George W. Paine, for appellees.

ROTHROCK, C. J.

1. The cause was not really disposed of on the demurrers, although the formal order of the court in disposing of them is in the nature of a ruling on the demurrers. After the petition and demurrers were filed, and, for aught that appears, after the ruling thereon, the parties entered into a stipulation by which it was agreed that upon appeal to this court, the cause should be tried “upon the facts admitted by the demurrers in said cause, and the facts and evidence attached to said petition, and covered by the stipulations heretofore filed, and the same shall be tried de novo in said court upon the merits, without assignment of errors.” The cause is therefore here for trial anew. The material facts in the case, as we regard them, are not in dispute. They are either admitted by the demurrers, or appear in record evidence attached to the pleadings. It appears from the record that on the 16th day of August, 1873, one Charles H. Berry was the owner of the land in controversy, which consists of the S. E. 1/4 of section 35, and the N. E. 1/4 of section 36, township 82, range 36. On that day he executed a mortgage upon said land to one Samuel Showalter, to secure the payment of a promissory note for $3,000, payable on demand. On the 7th day of June, 1888, said Showalter, for a valuable consideration, assigned said note and mortgage to the plaintiff. Charles H. Berry, the mortgagor, was during his life a resident of the state of Indiana; and the mortgagee, Samuel Showalter, has been a resident of the same state for the past 20 years. The said mortgage was duly acknowledged, and was filed for record on the 26th day of September, 1873. No question is made as to the recording of the mortgage. On the 3d day of October, 1873, while Charles H. Berry was still the owner of the said real estate, he died intestate, leaving the defendants Sarah Gilbert, Edward Gilbert, and Francis Berry as his only heirs. Sarah and Edward Gilbert were residents of the state of Indiana for 15 years, and the defendant Francis Berry was a resident of the state of California for 14 years, prior to the commencement of the suit. The facts upon which the defendants rely to defeat the foreclosure of the mortgage are based upon a suit in attachment which was commenced in the Carroll county district court by one A. S. Mount against said Berry, on the 11th day of July, 1873, upon a money demand. An attachment was issued on the same day, and levied upon the land in controversy. Service was had by publication, and on the 30th day of September, 1873, judgment was rendered; and on the 7th day of October, 1873, an execution was issued, upon which the land was sold by the sheriff to one William Bray. Bray conveyed the said real estate to other parties, and the defendant Franklin K. Ingledue and William Ingledue claim title to the said S. E. 1/4 of section 35 under and by virtue of the said attachment proceedings, sheriff's sale, and deed to William Bray. Both of said quarter sections were purchased by said Bray, and the defendant Leet claimed title to the said N. E. 1/4 of section 36 as a remote grantee of Bray. He also claims title by virtue of a tax sale, and a tax-deed made in pursuance of the sale, which deed was made and executed on the 26th day of January, 1878.

We will first dispose of the material question pertaining to the validity of the proceedings in the attachment suit. It is distinctly averred in the petition that Charles H. Berry had no actual notice that the land in controversy had been attached by his creditors. The proceeding was therefore strictly in rem. A great many objections are made to these proceedings by counsel for the plaintiff. We need not set out nor discuss them, and will confine ourselves to a determination of what we regard as the one vital question. It is distinctly averred in the petition that the execution in the attachment proceeding was issued on the 7th day of October, 1873, and that Charles H. Berry, the owner of the land, died on the 3d day of that month, four days before the execution was issued. These facts necessarily involve the validity of a sheriff's sale of land made upon an execution issued after the death of the execution defendant. It is provided by section 3133 of the Code that “the death of part only of the defendants shall not prevent execution being issued, which, however, shall operate alone on the survivors, and their property.” This provision of the statute plainly implies that an execution issued after the death of a defendant shall not operate on him, or his property; and this court has held that sales based on such executions are void. And the fact that the property levied on under the execution was already held by the sheriff, by writ of attachment levied before the death of the judgment debtor, will not affect the rule. In Welch v. Battern, 47 Iowa, 147, and in Boyle v. Maroney, 73 Iowa, 70, 35 N. W. Rep. 145, it is held that the right of a judgment creditor to issue an execution against the property of his debtor terminates with the death of the debtor, and that a sale and deed made in pursuance thereof are void. It is insisted by counsel for appellee that this rule has no application to an execution on a judgment in rem. Whatever there may be in the way of authority in support of the position, we think that under our statute there can be no escape from the conclusion that no execution issued after the death of a defendant shall have any operative force against his property. And in the case of Welch v. Batteum, supra, it appears that service of process in the action was made upon the defendant by publication. That being the fact, the judgment was not personal, but in rem. And we may say, further, that we can see no reason why there should be any distinction between an execution on a personal judgment and one in rem. It is lawful to seize the property of a non-resident without actual notice, and upon service by publication, because such a proceeding is authorized by our laws. But no authority is given to...