Farmer & Sons v. Sasseen

• Decision Date: 21 March 1884
• Citation: 18 N.W. 714,63 Iowa 110
• Parties: FARMER & SONS v. SASSEEN ET AL
• Court: Iowa Supreme Court

18 N.W. 714

63 Iowa 110

FARMER & SONS v. SASSEEN ET AL

Supreme Court of Iowa, Council Bluffs

March 21, 1884

Appeal from Keokuk District Court.

IN April, 1879, the plaintiffs recovered a judgment against the defendants. Execution thereon was issued, and thereunder the plaintiffs became the purchasers of certain real estate belonging to the defendants, and thereby their judgment was satisfied of record in August, 1881. Thereafter one Singmaster commenced an action in the circuit court, to correct a decree foreclosing a mortgage executed to him by the defendants, and a sale thereunder, so that it would appear that he had, under his mortgage and sale, the prior lien on the real estate purchased by the plaintiffs. In March, 1882, Singmaster obtained a decree, and it was therein determined and ordered that the land purchased by the plaintiffs had been sold by the sheriff under the decree of foreclosure, and the same by the decree was included or inserted in the Singmaster certificate of purchase, and the sale of the land to the plaintiffs was set aside. The plaintiffs and defendants were parties to said action, but neither having appealed therefrom, the same remains in full force and effect. At the time this decree was entered, no deed had been executed under the Singmaster foreclosure and sale, and it is claimed by the appellees that the plaintiffs had the right to redeem from said sale. Afterward, in August 1882, a motion was filed in the district court by the plaintiffs to set aside the satisfaction of their judgment on the ground that the sale had been set aside by the circuit court, as above stated, and it had been decreed that, under said sale, the plaintiffs did not obtain title to the land. The motion was overruled, and the plaintiffs appeal.

REVERSED.

Leggett & McKemey and Sampson & Brown, for appellant.

Mackey, Fonda & Mackey, for appellees.

OPINION

SEEVERS, J.

I.

Counsel for the appellees insist in argument that there was no bill of exceptions or certificate of the trial judge setting out the evidence introduced, and, therefore, we have nothing before us which can be determined. The abstract states that it contains "all the pleadings, evidence and other proceedings in this cause." There is no amended abstract denying this statement. The only denial is in the argument of counsel. In the absence of an amended abstract denying the statements contained in appellant's abstract, the latter is deemed to be true. White v. Savery, 49 Iowa 197.

II. It is provided by statute that, where real estate is purchased at sheriff's sale, and the judgment on which execution issued was not a lien thereon, which fact was unknown to the purchaser, the sale shall be set aside on motion. Code, § 3090. The appellees insist that plaintiffs' judgment was a lien, and that by the purchase the...