Gilbert v. Husman

• Decision Date: 20 December 1888
• Citation: 76 Iowa 241,41 N.W. 3
• Parties: GILBERT ET AL. v. HUSMAN ET AL.
• Court: Iowa Supreme Court

76 Iowa 241

41 N.W. 3

GILBERT ET AL.

v.HUSMAN ET AL.

Supreme Court of Iowa.

Dec. 20, 1888.

Appeal from district court, Blackhawk county; C. F. COUCH, Judge.

Action in equity by S. C. Gilbert and G. W. Gilbert against Joseph Husman and others to quiet title to real estate. Judgment for plaintiffs, and defendants appeal.O. C. Miller and E. M. Sharon, for appellants.

Boies, Husted & Boies, for appellees.

SEEVERS, C. J.

In 1881, the land in controversy was owned by one Braffle, and he executed a mortgage thereon to F. A. Wilcox and afterwards conveyed the land to John S. Dage. On October 10, 1883, J. I. Myres obtained a judgment against Dage, which was a lien on the land, and the next day Dage conveyed it to one of the plaintiffs. In November, 1883, an execution was issued on the Myres judgment, the land sold, and, no redemption having been made, the sheriff conveyed it to the purchaser under whom the defendant claims. Afterwards, the Wilcox mortgage was foreclosed, and it was declared to be the prior lien, and the equitable right of the plaintiffs and defendant to redeem was cut off and barred by the judgment. An execution was issued on this judgment and the land sold thereunder and purchased by Hiram Parks on October 17, 1885. On the 16th day of October, 1886, the plaintiffs paid to the clerk of the district court the amount due Parks, as shown by the certificate of sale which Parks a few days afterwards received from the clerk, and gave or left with him the certificate of sale, but he did not, in writing, assign it to any one.

The foregoing facts are not disputed. We find that the following additional facts are shown by a preponderance of the evidence: The plaintiffs, under the claim that they had the right to redeem, made application to Parks for that purpose, and desired him to assign to them the certificate of purchase. Parks recognized the right to redeem, and agreed to assign the certificate. He, however, was unable to find it, and, at the final interview between them, Parks being still unable to find the certificate, declined to assign it, but told the plaintiffs “to go and pay the money to the clerk; if they had the right to redeem they were going to get it whether I received the money or not.”

It is conceded by counsel for appellee that the plaintiff did not have the statutory right to redeem, because they were strangers to the title. Whatever title they had under the conveyance from Dage was divested by the sale and...