Empire Real Estate & Mortg. Co. v. Beechley

• Decision Date: 14 January 1908
• Citation: 137 Iowa 7,114 N.W. 556
• Parties: EMPIRE REAL ESTATE & MORTGAGE CO. v. BEECHLEY.
• Court: Iowa Supreme Court

137 Iowa 7

114 N.W. 556

EMPIRE REAL ESTATE & MORTGAGE CO.

v.BEECHLEY.

Supreme Court of Iowa.

Jan. 14, 1908.

Appeal from District Court, Linn County; Wm. G. Thompson, Judge.

Action in equity to quiet title to certain lots in the city of Cedar Rapids.Decree dismissing petition, and plaintiff appeals.Reversed.Ricker, Crocker & Tourtellot, for appellant.

Lewis Heins, for appellee.

WEAVER, J.

The material facts in the case are as follows: In November, 1899, the defendant Beechley brought an action in the district court of Linn county, Iowa, against H. W. Kirby and B. D. Hicks to recover the amount of an alleged indebtedness of $36, and in aid of such action sued out a writ of attachment, which was levied upon the property now in controversy.The only service of the original notice in said proceeding was by publication, on a showing that said Kirby and Hicks were nonresidents of the state, and the only proof of such service was by the affidavit of one Sherman that he was the publisher of a weekly newspaper printed and issued at Cedar Rapids, Iowa, in which said notice had been duly published for four successive weekly issues beginning December 2, 1899.This affidavit was sworn to before Beechley, the plaintiff in said proceedings, acting as a notary public.On the proof of service thus made and verified a judgment in rem was entered confirming the attachment and ordering a special execution for the sale of the lots.Execution was thereafter issued, and said property was struck off and sold thereunder to said Beechley, and, no redemption being made within a year, the sheriff executed and delivered to him a deed under which he now asserts title.The plaintiff in this proceeding claims title to the lots through a conveyance from Hicks, and contends that the attachment proceedings above mentioned were void for want of jurisdiction and that Beechley obtained no title by virtue of the sheriff's deed.This contention is bottomed upon the proposition that, the affidavit of publication of the original notice having been verified before Beechley himself, it did not furnish sufficient proof of service to authorize the court to enter judgment or to order a sale of the property.The defendant avers that the proof of service was regular and sufficient, and that plaintiff's cause of action is barred by the statute of limitations.

1.The statute which permits the property of 8 nonresident to be seized and subjected to judicial sale upon notice by publication only is a most drastic remedy, and not infrequently results in oppression and injustice.Recognizing this fact, the courts quite uniformly hold that all of the statutory requirements for the institution and prosecution of such proceedings, and especially such as are of a jurisdictional character, must be strictly and literally observed, in order that the judgment entered thereon shall be of legal force and validity.Priestman v. Priestman, 103 Iowa, 320, 72 N. W. 535;Fanning v. Krapfl, 61 Iowa, 417, 14 N. W. 727, 16 N. W. 293;Abell v. Orvis, 17 Iowa, 174;Tunis v. Wethero, 10 Iowa, 305, 77 Am. Dec. 117.If, then, there was no sufficient return or proof showing due publication of the original notice in the attachment case, the proceedings based thereon must of necessity be held void.This proof, the statute provides, shall be made by the affidavit of the publisher or his foreman and filed before default is taken.Code, § 3536.

We have, then, to inquire whether in such proceedings the plaintiff, who happens to be a notary public or magistrate, may administer the necessary oath.In Wilson v. Traer, 20 Iowa, 231, this court held that the acknowledgment of a deed taken by a notary who was interested in the transaction is void, and its record will not impart constructive notice to a subsequent purchaser.The same rule has since been applied in Bank v. Radtke, 87 Iowa, 365, 54 N. W. 435, andSmith v. Clark.100 Iowa, 609, 69 N. W. 1011.So far as we have noted the precedents all agree to the correctness of this rule.If we are to hold void an acknowledgment taken and certified by a notary who is interested in the transaction, we are unable to conceive upon what principle we may sustain the act of another notary who takes and certifies an affidavit which is essential to the maintenance of an action in which he is himself plaintiff.There appears to be no express statutory prohibition in either case.In the Wilson Case, supra, the court said that to permit a party to take acknowledgment of a conveyance in which he is interested “would leave a broad door open to the perpetration of frauds.”If this be true in reference to the acknowledgment of written instruments, the opportunity for fraud would be even greater if the party who brings a suit against a nonresident on published notice may administer the oaths and take the affidavits on which the validity of the judgment he obtains must necessarily depend.In New York and some...