Clark v. Ellsworth
| Citation | 84 Iowa 525,51 N.W. 31 |
| Parties | CLARK v. ELLSWORTH. |
| Decision Date | 03 February 1892 |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from district court, Ringgold county; R. C. HENRY, Judge.
Action in equity to set aside a judgment, and to permit plaintiff to appear and defend, and to set aside a sheriff's deed made to the defendant for certain lands sold under execution upon said judgment. Decree was entered, setting aside the judgment and sheriff's sale and deed, and confirming title to the land in plaintiff, and for costs against the defendant. Defendant appeals.Nagle & Birdsall, for appellant.
R. H. Spence and Laughlin & Campbell, for appellee.
1. The following statement of the facts made by appellant is conceded and found to be substantially correct, and, with those hereafter noticed, will be sufficient for an understanding of the questions presented:
On the 13th day of September, 1878, the plaintiff and defendant entered into a written contract for the purchase and sale of lands in Iowa, by the terms of which it was agreed that the plaintiff, Clark, should buy and sell through the recommendation and assistance of the defendant, Ellsworth. Clark was to allow and pay Ellsworth for his services one-third of the net profits realized on the sales. Clark was to be first reimbursed for the purchase money and taxes paid, with interest upon the same at 10 per cent. from date of payments, and the balance to be divided,--two-thirds to Clark and one-third to Ellsworth. Under this contract, lands were purchased in Hardin, Wright, and Pocahontas counties. The lands in Hardin and Wright counties had all been sold, and the proceeds divided, before the commencement of the action out of which this case grows. Under the contract, Ellsworth negotiated for Clark the purchase of 480 acres of land in Pocahontas county at $2 per acre and taxes of 1878, ($44.52,) making the purchase price $1,004.52. The purchase price was paid by Clark on November 30, 1878, and deed for the land taken in his name. On August 16, 1884, Clark conveyed this land to his son Courtland C. Clark, and the deed was placed upon record on April 21, 1885; but he never notified Ellsworth of the transfer, or rendered any account of profits. On the 27th day of May, 1885, Ellsworth commenced an action against Clark in the district court of Ringgold county, Iowa, to recover his share of the profits in said Pocahontas county lands, and caused an attachment to be issued in said action, and levied upon the W. 1/2 of the N. W. 1/4 of section 19-70-30; and in said petition Ellsworth averred that the Pocahontas lands, at the time Clark conveyed them to his son, were worth $4,320, and that Clark owed him, for his share of the profits, $803.33. Clark was a non-resident, and service was made by publication. Upon a trial had in said cause at the October term, 1885, thereof, the court found that Clark was indebted to Ellsworth in the sum of $819.50, and ordered that the real estate attached be sold to satisfy said claim, with costs, taxed at $16.75, and that a special execution issue thereon. Execution was issued and levied upon said land on November 3, 1885; and the land was sold by the sheriff thereunder in December, 1885, to Ellsworth, for $700, and in December, 1886, the sheriff made Ellsworth a deed for said lands on said sale. Afterwards, and on April 8, 1889, Clark filed his petition in equity in this case, asking that the judgment rendered in the first action be opened up and set aside, and for permission to appear and defend in said action, and for other relief, averring, in substance, as a ground of relief, that Clark was a non-resident, and had no actual notice of the action, and that the judgment was procured by fraud practiced by Ellsworth; that Clark was not at the time indebted to Ellsworth in any sum, but that Ellsworth, through false testimony concerning the matters set forth in his petition, made it appear to the court that Clark was indebted to him. On September 11, 1889, defendant filed his answer in this action (1) denying each and every allegation in the petition not expressly admitted; (2) admitting the bringing of the other action, the attachment of the land, the judgment and sale, and execution and deed to him, and that service was made by publication; (3) and pleading the statute of limitations, and that there are no facts set forth in the bill that entitle Clark to equitable relief.
At the April term, 1890, of said court, the cause came on for trial; and upon the trial it very clearly appeared--in fact, both sides testified--that Clark and Ellsworth entered into the contract, (Exhibit D,) and that Ellsworth negotiated for Clark the purchase of the 480 acres in Pocohontas county, under said contract, for the sum of $1,004.52. It also appeared that the land was worth on the 16th day of August, 1884, at the time Clark conveyed the same to his son, $4,320, and that Ellsworth had not been paid any part of the profits, which would make the amount due Ellsworth the amount for which he obtained judgment. Clark, however, claimed that he sold the land to his son for $2,500, and that Ellsworth's recovery should be figured on that basis, and during the trial offered to pay the same, with interest, which was declined. And the court rendered a judgment against Ellsworth in favor of Clark, setting aside the judgment, and canceling and setting aside the sheriff's sale and deed, and rendering final judgment against...
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