Lumpkin v. Snook

• Decision Date: 25 April 1884
• Citation: 19 N.W. 333,63 Iowa 515
• Parties: LUMPKIN ET AL. v. SNOOK
• Court: Iowa Supreme Court

19 N.W. 333

63 Iowa 515

LUMPKIN ET AL. v. SNOOK

Supreme Court of Iowa, Dubuque

April 25, 1884

Appeal from Humboldt Circuit Court.

THE plaintiffs allege in their petition that in the year 1877 they were doing business as partners, under the firm name of Lumpkin, Moody & Co., and that they sold to one Ella A Averill a bill of lumber of the value of $ 134.48, to be used in the repair of a dwelling house, and that said lumber was used in repairing said building, and in the betterment thereof; that they afterwards instituted the suit against said Ella A. Averill and her husband, to recover the amount of said bill and for the foreclosure of their mechanic's lien; that such proceedings were had in said cause that judgment was rendered in their favor against Ella A. Averill for the amount of their claim, and foreclosing the mechanic's lien on said building, and the lot on which it was situated, against her and her husband; that afterwards the premises were sold on special execution issued on said judgment, and they became the purchasers thereof, and, the premises being unredeemed at the end of one year from the date of such sale, the sheriff executed to them a deed conveying the same to them; that, at the time said debt was contracted, this defendant, Edward Snook, held a mortgage on the premises, which was a lien on said premises superior to their mechanic's lien, except as to the improvements and betterments thereon made with the lumber sold by them to said Ella A. Averill, as to which they claim that their mechanic's lien was superior; that defendant instituted a suit for the foreclosure of his said mortgage, making the Averills (husband and wife) and the plaintiffs defendants that at the time said foreclosure suit was instituted no part of the debt secured by the mortgage was due, and defendant had no cause of action thereon, but, notwithstanding that fact, he prosecuted said action to judgment, and obtained a decree of foreclosure against all the defendants in the action; that this judgment was obtained about two months after they obtained their judgment foreclosing their mechanic's lien; that they were about to appear in the action to foreclose defendant's mortgage and make defense thereto, but that defendant then promised them that he would pay off their mechanic's lien, and stated to them that it was not necessary for them to make defense; and that they were induced by this promise and statement to forbear making any appearance or defense in said cause, and to permit him to take a decree barring and foreclosing their equity of redemption, and establishing his mortgage as the superior lien on the whole of the premises; that an execution was issued on said judgment and the property sold thereon defendant being the purchaser; that defendant now refuses to pay off their lien, and that his promise to pay the same was made without any intention on his part of paying the same but was made for the purpose of inducing them not to appear or defend in said action; that within one year after said judgment of foreclosure was rendered, defendant served on them an original notice, notifying them that he had commenced a suit in the district court to again foreclose said mortgage and obtain judgment on the notes secured by it, and to have said former judgment set aside and held for naught; that relying on this notice, and believing that defendant had elected to treat said judgment of foreclosure as void and as a nullity, they did not institute any proceedings to have it vacated and set aside within the period allowed by the statute for bringing a suit for that purpose; and that defendant, after it was too late for plaintiffs to institute such suit under the statute, dismissed said suit, and is now claiming the property under the sale by virtue of the foreclosure proceedings. The prayer of the...