Fortin v. Sedgwick

• Decision Date: 07 February 1907
• Citation: Fortin v. Sedgwick, 133 Iowa 233, 110 N.W. 460 (Iowa 1907)
• Parties: ALEXIS FORTIN, Appellee, v. C. C. SEDGWICK and MRS. C. C. SEDGWICK, Appellants
• Court: Iowa Supreme Court

110 N.W. 460

133 Iowa 233

ALEXIS FORTIN, Appellee, v. C. C. SEDGWICK and MRS. C. C. SEDGWICK, Appellants

Supreme Court of Iowa, Des Moines

February 7, 1907

Appeal from Woodbury District Court.-- HON. F. R. GAYNOR, Judge.

ACTION in equity to set aside a sheriff's deed and quiet title to land. Decree for plaintiff, and defendants appeal. The opinion states the material facts.-- Affirmed.

Affirmed.

Struble & Stiger and W. G. Sears, for appellants.

Milchrist & Scott, Sullivan & Griffin, and A. J. Granger, for appellee.

OPINION

WEAVER, J.

The property in controversy consists of four hundred and eighty-five acres of land in Woodbury county, Iowa and at the time now in question had a market value of $ 30,000 and a rental value of at least $ 2,000 per year. It formerly belonged to one Bruganier who conveyed a part of it one O. C Tredway and the remaining interest in the land was conveyed or passed by will to said Tredway and his wife, Elizabeth. Thereafter, in the year 1899, O. C. Tredway conveyed all his interest to Elizabeth Tredway, but the deed was not placed on record. In September, 1900, O. C. Tredway employed C. C Sedgwick, who is a professional abstracter of titles to prepare an abstract of title to a portion of this land, and thereafter, the bill for this service not being paid, Sedgwick brought suit upon it in justice's court and obtained a judgment thereon against O. C. Tredway in the sum of $ 18.55 with costs taxed at $ 4.20. On July 29, 1901, a transcript of said judgment was filed in the office of the clerk of the district court of Woodbury county. Soon after the last-mentioned date an execution was issued upon said judgment and levied upon all of said land, and on October 24, 1901, the entire tract was sold by the sheriff to said Sedgwick for the amount of the judgment, interest, and costs. For some reason Sedgwick refrained from paying the costs and receipting the judgment, for which reason the sheriff withheld his return upon the execution and his certificate of sale until the year of redemption had expired, when Sedgwick settled with the sheriff and received a deed for the entire tract which he placed on record. Pending these developments and on or about October 2, 1901, Elizabeth Tredway, then the sole owner of the land, entered into a written contract to sell and convey the same to the plaintiff herein for $ 28,500, of which sum there was an advance payment made of $ 1,000, the remainder to be paid on March 5, 1902, at which time Mrs. Tredway undertook to make a conveyance accompanied by abstract showing a clear title. An abstract was thereupon secured and submitted by plaintiff to counsel for their opinion. The abstract failed to note the Sedgwick judgment or the sheriff's sale thereunder, and showed an apparent perfect title in Mrs. Tredway subject only to certain liens and charges aggregating but a small fraction of the value of the property. On March 5, 1902, plaintiff relying upon said showing of title paid Mrs. Tredway about $ 20,000, and retained, for the time being the remainder of the agreed price until all the aforesaid liens and charges should be removed. These matters appear not to have been fully adjusted until late in the year 1904, and at that time, in consummating the deal, the sheriff's deed to Sedgwick, which had been recorded since the date of plaintiff's purchase, was discovered, and this action instituted to set it aside. At the sheriff's sale no one was present except the officer and Sedgwick himself. The land was first offered in forty-acre tracts, but Sedgwick refrained from bidding until the tract was offered as a whole and was then struck off to him for the amount of his claim and costs, $ 40.90. A sale of any one quarter section of the land at two-thirds its fair value would have produced more than enough to satisfy every apparent lien or claim, including Sedgwick's, existing against the property. Indeed, some of those apparent claims were only nominal in character or had in fact been satisfied, and it is probable that the sale of any forty acres of the land at a fair valuation would have produced more than enough to clear the title to the whole. Although procuring the sheriff's deed in October, 1902, Sedgwick made no assertion of title thereunder save to record his deed. He did not take or demand possession, or pay the taxes or demand or receive any rent, and it was only when the true condition of the record title was discovered by plaintiff and an effort made to cure the defect that he came forward to assert his ownership. Other facts of the same general nature and tendency are disclosed by the record, but we will not stop to rehearse them. Altogether the record makes up a case for the appellants which is peculiarly barren of any element appealing to the favorable consideration of a court of equity. Passing by questions raised by counsel as to homestead rights, we are content to base our affirmance of the decree below upon the fraud in law, if not in fact, with which the sheriff's sale and deed are tainted.

To maintain the unconscionable advantage which his deed, if upheld, would give him, the appellant claims to occupy the position of an innocent purchaser. There is nothing perhaps to clearly show that, at the time of his levy and sale, he knew of the existence of the contract between the appellee and Elizabeth Tredway, though it seems scarcely possible that a sale of such magnitude should not have been a matter of public notoriety or should not have come to the attention of a professional abstracter to whom all such deals are a matter of peculiar interest. But assuming that he was utterly ignorant of the real ownership of the land except as disclosed by the record (which is not easy to credit) the very fact that he believed O. C. Tredway to be the owner of the land uncomplicated by conveyances and contracts not of record, his conduct in insisting upon a sale of the entire tract for such a trifling sum is still less compatible with good faith. We have held that an officer in seeking to enforce an execution for the collection of money is in duty bound to observe the statute which provides that he shall "in all cases select such property in such quantities as will be likely to bring the exact amount to be raised, as nearly as practicable." Code section 3970. Even in the absence of a statute a violation of this most equitable rule would doubtless be condemned by the courts. If this statute is not to be cast aside or ignored as a meaningless form of words which sheriffs and execution plaintiffs are under no obligation to heed, one can hardly imagine a more flagrant instance calling for its application than is here presented. It is not seriously disputed that the land as a whole is worth about $ 70 per acre, while it was sold for less than nine cents per acre. It sometimes happens that the property to be levied upon is a single city lot or other property so improved that any division of it for the purpose of sale is impracticable, and in such case...