McConkey v. Laub

• Decision Date: 10 June 1887
• Citation: 33 N.W. 146,71 Iowa 636
• Parties: MCCONKEY v. LAUB, AND ANOTHER, SHERIFF.
• Court: Iowa Supreme Court

71 Iowa 636

33 N.W. 146

MCCONKEY

v.LAUB, AND ANOTHER, SHERIFF.

Supreme Court of Iowa.

June 10, 1887.

Appeal from circuit court, Polk county.

Action in equity to modify a judgment, and set aside a sale of real estate thereunder. The circuit court sustained a demurrer to the petition, and from that order plaintiff appealed.Cole, McVey & Clark, for appellant.

W. G. Harbison, for appellee.

REED, J.

It is alleged in the petition that plaintiff purchased of defendant a certain tract of real estate, at the agreed price of $1,495.50, a portion of which she paid at the time the contract was entered into, and that defendant gave her a title-bond, by which he obligated himself to convey the premises to her on the payment of the deferred installments of the price, the amounts of which, and the times of payment, were designated in the bond; that she afterwards paid the first installment when it became due, but made default in the payment of an installment subsequently falling due, and that defendant thereupon instituted a suit for the foreclosure of the bond; that he obtained a judgment in such suit, but that the amount of such judgment was largely in excess of the amount which was actually due on the bond; that plaintiff subsequently paid to defendant, to be applied in satisfaction of said judgment, the sum of $700, but that he neglected to give her credit therefor on the judgment, and that he afterwards caused a special execution to be issued on the judgment for the sale of said real estate, and that he bid the same in at the sale thereunder, and received a certificate of purchase from the sheriff. It is also averred that defendant did not have title to a portion of the real estate, and that this fact was unknown to plaintiff when the judgment was rendered, and did not come to her knowledge until more than one year after that; also that plaintiff did not learn for more than one year after the rendition of the judgment that it was for an amount in excess of what was due upon the bond.

The prayer of the petition is that the judgment be modified by reducing the amount thereof to the sum actually due upon the bond, and by adding thereto a provision that execution shall not issue for its enforcement until defendant procures title to that portion of the real estate to which he does not hold the title, and that the sale of the real estate on the special execution be set aside, and the amount paid by plaintiff subsequent to the rendition of the judgment in satisfaction thereof be credited thereon.

1. The power to vacate or modify a judgment after its rendition is conferred on the district and circuit courts by section 3154 of the Code, and the grounds upon which such vacation or modification may be made are also prescribed in that section. It is provided by section 3155 that where the grounds for vacating or modifying the judgment could not with reasonable diligence have been discovered at the term it was entered, but are afterwards discovered, the application must be by petition filed not later than the second term after the discovery, but that no such petition can be filed after the expiration of one year from the rendition of the judgment.

The petition in this case was filed after the expiration of one year, and one of the grounds of the demurrer is that no relief can be granted against the judgment because of that fact. It has been held, however, that courts of equity have jurisdiction to grant relief against judgments, in certain cases, where the ground of relief is not discovered until after the expiration of one year from the rendition of the judgment. Young v. Tucker, 39 Iowa, 596;District Tp. of Newton v. White, 42 Iowa, 608;Lumpkin v. Snook, 63 Iowa, 515, 19 N. W. Rep. 333. It is said in the last case, however, that the extent of the jurisdiction of the court of equity is to grant relief on the grounds enumerated...