Lamb v. McConkey

• Decision Date: 26 October 1888
• Citation: 40 N.W. 77,76 Iowa 47
• Parties: LAMB v. MCCONKEY ET. AL.
• Court: Iowa Supreme Court

76 Iowa 47

40 N.W. 77

LAMB

v.MCCONKEY ET. AL.

Supreme Court of Iowa.

October 26, 1888.

Appeal from district court, Polk county; W. F. CONRAD, Judge.

Action by Newton Lamb against Catherine McConkey and others to quiet title to and obtain possession of certain land in Polk county. Judgment for plaintiff, and defendants appeal.Cole, McVey & Clark, for appellants.

W. G. Harvison, for appellee.

SEEVERS, C. J.

We understand the facts to be that the plaintiffs sold one of the defendants certain real estate, and gave her a title-bond. The bond was foreclosed, the real estate sold on a special execution, and purchased by the plaintiff for less than the amount due on the judgment. A general execution was afterwards issued on said judgment, and the real estate in controversy levied upon and sold to the plaintiff. A sheriff's deed was therefore executedto him, and he seeks in this action to obtain possession of and quiet his title to such real estate. The defendant pleaded that the judgment in the foreclosure proceeding was for a larger amount than was due, and that several distinct parcels of the real estate were sold together in a lump for a greatly inadequate price, and that the general execution for the balance due was levied upon the lands in controversy in this action and other real estate, all of which were sold together in a lump for an inadequate price. The defendants also pleaded that a portion of the premises constituted their homestead, and that the same was not set apart or designated, and was sold with and at the same time as the other several and distinct tracts of land. Therefore, the defendants insist the sale of the land in controversy and conveyance made in pursuance thereof by the sheriff are void, and they ask that the title to said premises be quieted in them. The plaintiff pleaded in a reply that all the matters and things pleaded by the defendants had been adjudicated in a prior action between these parties.

1. It seems clear and undoubted that all the objections made to the sale under the special execution, including the fact--conceding it to be a fact--that the judgment was rendered for a greater amount than was due, and that the real estate was sold in a lump, and for an inadequate price, was necessarily adjudicated in the prior action, which is reported in 71 Iowa, 636, 33 N. W. Rep. 146. It is insisted that the cited case was decided on a demurrer to the petition; but this is immaterial, for the reason that the demurrer was not based on any technical defect, but on the ground that under the facts stated the present defendants were not entitled to the relief asked. When the demurrer was sustained the right to amend the petition...