Cooper v. French

• Decision Date: 08 December 1879
• Citation: 52 Iowa 531,3 N.W. 538
• Parties: J. C. COOPER, APPELLANT v. H. G. FRENCH, ADMINISTRATOR, APPELLEE.
• Court: Iowa Supreme Court

52 Iowa 531

3 N.W. 538

J. C. COOPER, APPELLANT

v.H. G. FRENCH, ADMINISTRATOR, APPELLEE.

Supreme Court of Iowa.

Filed December 8, 1879.

Appeal from Montgomery district court.

Action in equity to set aside a sheriff's deed. The plaintiff was the owner of the premises in question, and had executed a mortgage thereon to the defendant's intestate. The defendant foreclosed the mortgage, and caused an execution to be issued and placed in the hands of the sheriff, who advertised the property and made a return of sale, and at the expiration of one year from the time of sale, as stated in the return, executed a deed to the defendant as purchaser. The questions in the case arise upon sustaining the defendant's motion to strike out a portion of the petition, and upon sustaining the defendant's demurrer to the remainder of the petition. Judgment being rendered for the defendant, the plaintiff appeals.J. H. Keatly, for appellant.

Miller & Bartholomew, for appellee.

ADAMS, J.

1. The plaintiff averred in the seventh paragraph of his petition that “there was no such sale of the property as the law provides, and that there was no compliance with the law after the property was offered for sale.” The defendant moved to strike out the paragraph, on the ground that it averred only a conclusion of law. The motion was sustained and the plaintiff excepted. He insists that the paragraph should be taken with other paragraphs which he claims contain averments of facts showing in what the illegality of the sale consisted. Whatever is numbered as a distinct paragraph should contain something more than a mere conclusion of law based upon statements of facts contained in some other paragraph. We think the court did not err in sustaining the motion.

2. The plaintiff averred, in substance, in the twelfth paragraph of his petition, that no return of the sale was made by the sheriff until the expiration of the year of redemption. The defendant moved to strike out the paragraph on the ground that the same was immaterial. In support of this allegation and in resistence to the motion the plaintiff insists that he was entitled to know, from a return properly made out, not only the fact that a sale had been made, but the time when it was made. If the sale had been legally made it would not become illegal and void by the failure of the officor to make a return of the sale during the year of redemption. Such failure would indeed be an irregularity, and if the execution...