Escher v. Simmons

• Decision Date: 24 June 1880
• Parties: ESCHER v. SIMMONS AND ANOTHER.
• Court: Iowa Supreme Court

54 Iowa 269

6 N.W. 274

ESCHER

v.SIMMONS AND ANOTHER.

Supreme Court of Iowa.

Filed June 24, 1880.

Appeal from Cedar district court.

This action is brought to recover the purchase price of certain real estate, and to declare the judgment recovered a lien upon the land sold. By consent the cause was referred to the Hon. John Shane, judge of the district court, to to make up and try the issues of law and facts, and report his findings therein. The facts of the case are fully presented by the report of the referee, which is as follows:

“1. That on the fifth day of April, 1875, plaintiff sold to the defendant Abraham Simmons the east half of the north-west quarter, and the west half of the north-east quarter, of section 32, township 81 north, range 3, west of the fifth principal meridian, containing 160 acres; also lot No. 4, in the north-east quarter of section 19, township 80, range 3, west of fifth principal meridian, containing 48.56 acres, for the consideration of $7,140; that by the terms of such purchase said consideration was to be paid as follows, to-wit: $2,000 in cash; $500 April 5, 1876; $1,000 April 5, 1877; $1,000 April 5, 1878; $1,000 April 5, 1879; and $640 April 5, 1880.

2. That said purchaser then and there caused to be paid, or paid, plaintiff the sum of $2,000, and executed to plaintiff his five several promissory notes for the balance of said purchase money, in the sums and payable at the above dates respectively, and said promissory notes provided for the payment of interest annually on said deferred payments at the rate of 10 per cent. per annum; that plaintiff then and there executed and delivered to defendant Abraham Simmons a deed for said premises so sold, and the said defendant executed and delivered to plaintiff a mortgage to secure the deferred payments of said purchase money, as evidenced by said promissory notes; that thereupon the defendant Abraham Simmons went into possession of said land, and has occupied the same and lived thereon ever since.

3. On the twentieth day of July, 1876, plaintiff filed his petition in the circuit court of Cedar county, asking a judgment at law against the said Abraham for the sum of $500 and interest, being the amount due on the promissory note in said mortgage first described; that afterwards such proceedings were had that in the circuit court of said county the plaintiff obtained judgment in said action against the said Abraham for the sum of $572.92; that execution was issued on said judgment; that by virtue thereof the two first tracts in said mortgage described were levied upon and sold to satisfy said judgment and costs, on the eighteenth day of November, 1876, and the plaintiff in this action was the purchaser at said sale, to whom the sheriff issued a certificate of purchase.

4. That on the sixteenth day of April, 1877, the plaintiff filed his petition in the district court of Cedar county against the said Abraham Simmons, asking judgment against him for the sum of $365, being the alleged balance of principal due on the second promissory note in said mortgage described, and judgment for interest at 10 per cent. per annum, and plaintiff in that petition further asked a foreclosure of said mortgage.

5. That afterwards, and at the May term of the district court in and for said county, such proceedings in said cause were had that a default was entered therein against the said Abraham, and a minute was made on the judge's docket or calendar in substance as follows: ‘Default of defendant, and judgment and decree, as prayed.’

6. That thereafter the clerk entered upon the records of the proceedings of said court the final decree or judgment, to-wit: ‘And now, on this eighth day of May, 1877, at the district court of Cedar county, the defendant being called and not appearing, judgment was rendered, in accordance with the prayer of said petition, on a balance of $365 due on a promissory note, with interest thereon from the sixth day of March, 1877, to date, and also for interest from April 5, 1877, up and to the sixth day of March, 1877, being compound interest, and a decree of foreclosure against the east 1/2 of the north-west 1/4, and the west 1/2 of the north-east 1/4 of section 32, township 81, range 3, west of the fifth principal meridian, and also on lot 4, in the north-east 1/4 of section 19, township 81, range 3, west of the fifth principal meridian.’ That there was no other entry of any judgment or decree on the journals of the proceedings of said court in said cause, but the clerk computed the amount, to-wit, $575.08, appearing to be due on said notes, and entered the same in the usual form, as a judgment against the said Abraham, on the judgment docket of said court.

7. That thereafter, on the twenty-second day of May, 1877, a special execution was issued by the clerk of said district court, commanding the sheriff of said county to levy upon the lands described in said mortgage, and to sell the same to satisfy said judgment, interest and costs; that in obedience to the said execution the said sheriff levied on said lands described in said mortgage, and on the twenty-third day of June, 1877, sold the same at public outcry, at the front door of the court-house, in said county, to the said judgment creditor, to-wit, the plaintiff in this action, for the sum of $609.80, and the said sheriff then and there issued to plaintiff a certificate of sale as required by law.

8. That afterwards, on the fifth day of November, 1877, the defendant Abraham Simmons sold and conveyed, by deed of general warranty, the lands described in said mortgage and certificate of sale last mentioned, to defendant Sem Simmons, except that part of said lands included in said lot 4, which had heretofore been sold and conveyed by said Abraham to other parties, with this plaintiff's consent. The nominal consideration for said lands, as appears by the deed of conveyance from the said Abraham to the said Simmons, is $6,000.

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