Kriv v. Nw. Sec. Co.

• Decision Date: 13 February 1948
• Docket Number: No. 47120.,47120.
• Parties: KRIV v. NORTHWESTERN SECURITIES CO. et al.
• Court: Iowa Supreme Court

239 Iowa 240
29 N.W.2d 865

KRIV
v.
NORTHWESTERN SECURITIES CO. et al.

No. 47120.

Supreme Court of Iowa.

Dec. 16, 1947.
Rehearing Denied Feb. 13, 1948.

Appeal from District Court, Woodbury County; Ralph C. Prichard, Judge.

Quieting title and partition action aimed to set aside a judicial sale of realty to defendant. The trial court held for defendant.

Affirmed.

R. B. Pike and F. W. Lohr, both of Sioux City, for appellant.

Shull & Marshall, Baron & Bolton, and Harper, Sinclair, Gleysteen & Nelson, all of Sioux City, for appellees.

MULRONEY, Justice.

A three story brick building in Sioux City was acquired by a trustee for bondholders in a foreclosure action. The trustee later petitioned the court for an order to sell the property to the highest bidder. Sale was made to the defendant Northwestern Securities Company and a deed made to them was approved by the court. This action to quiet title and partition by a bondholder, Mary Kriv, is in effect an action to set aside the above deed. A more extended statement of facts is contained in our opinion on a former appeal. See Kriv v. Northwestern Securities Co., Iowa, 24 N.W.2d 751, 755. In the former opinion we reversed the summary judgment entered in favor of the defendant, stating:

‘The trust deed and the decree of foreclosure are silent as to any authority of the trustee to sell the real estate which he held under the decree ‘for th use and benefit of the bondholders.’ * * * the bondholders (or holders of certificates issued under the decree in lieu of the bonds), who were the equitable owners of the property, were entitled to notice * * *.'

In this former opinion we reviewed the record showing the pubished notice of the hearing on the trustee's application for

[29 N.W.2d 866]

authority to sell and held this notice ‘did not have a reasonable tendency to give the bondholders knowledge of the trustee's application and opportunity to be heard.’

Trial has now been had, resulting in a judgment for the defendant, and plaintiff appeals.

I. This was a judicial sale in that it was made under an order of court having authority to order such a sale, subject to the court's confirmation. 50 C.J.S., Judicial Sales, § 1a; Richardson v. Jones, 106 Va. 540, 56 S.E. 343. It is the policy of the courts to uphold judicial sales where it can be done without violating settled principles of law. 50 C.J.S., Judicial Sales, § 1b; Holt v. Joseph F. Dickmann Realty Estate Co., Mo.App., 140 S.W.2d 59.

II. In our former opinion we held the notice upon the trustee's application for authority to sell was insufficient. The defendant (Northwestern Securities Co.) now argues earlier notices in connection with a petition of intervention of another...