Holzer v. United States
| Decision Date | 05 June 1957 |
| Docket Number | No. 15756.,15756. |
| Citation | 244 F.2d 562 |
| Parties | Aloys HOLZER and Lawrence Holzer, Appellants, v. UNITED STATES of America, Harry Tenborg, United States Marshal, and William O'Leary, Deputy United States Marshal; and Kasmer Mastel and Theresia Mastel, his wife, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. K. Murray, Bismarck, N. D., filed brief for appellants.
Robert Vogel, U. S. Atty., and William R. Mills, Asst. U. S. Atty., Fargo, N. D., filed brief for appellee, United States of America.
Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.
This is an appeal in an action to quiet title to a tract of land in Emmons County, North Dakota, from an order denying a motion of the plaintiffs (appellants) "for a temporary injunction restraining during the pendency of the action the United States Federal Attorney * * * and his assistants, and the United States Marshal * * * and his deputies, from selling at judicial sale or otherwise, the property described in the complaint."
The allegations of the complaint are, in substance, that prior to December 23, 1955, Joseph L. Holzer and his wife, Elizabeth Holzer, were the owners of the land in suit; that on that day they entered into a contract to sell the land to Kasmer Mastel and Theresia Mastel for $12,500 — $6,500 payable in cash at the time of the execution of the contract, and the balance of $6,000 in instalments of $2,000 each, payable on November 1 of each year thereafter until fully paid, with 4% interest; that on February 9, 1956, a judgment was obtained in the United States District Court for the District of North Dakota by the United States against Joseph L. Holzer and wife, which judgment was docketed in Emmons County, North Dakota, on June 10, 1956; that the United States Marshal on June 12, 1956, levied upon the land in suit, under execution; that the levy was void because the Mastels were the equitable owners of the land, and Joseph L. Holzer and wife had a mere legal title which they held as security for the unpaid balance of the purchase price under the contract for deed, and which title could not be reached by the levy and was not real estate; that on November 29, 1956, Joseph L. Holzer and his wife assigned to the plaintiffs the contract for deed and the money due thereon, and that the assignment was duly recorded with the Register of Deeds of Emmons County on December 6, 1956. In their complaint the plaintiffs asked that they be determined to be the owners of the vendors' interest in the contract for deed and that the United States be adjudged to have no right, title or interest in the land.
The United States in its answer recognized the validity of the contract of sale to the Mastels, and asserted that its judgment against Joseph L. Holzer became "a lien upon all interest that Joseph L. Holzer and Elizabeth Holzer, or either of them, had upon or in the real estate described in plaintiffs' complaint." The defendant, United States, asked that the action of the plaintiffs be dismissed.
At the hearing on the plaintiffs' motion for a temporary injunction to prevent a proposed sale under execution to satisfy the judgment of the...
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