Miller v. Wolf

• Decision Date: 10 April 1884
• Citation: 18 N.W. 889,63 Iowa 233
• Parties: MILLER v. WOLF ET AL
• Court: Iowa Supreme Court

18 N.W. 889

63 Iowa 233

MILLER v. WOLF ET AL

Supreme Court of Iowa, Davenport

April 10, 1884

Appeal from Appanoose District Court.

ACTION in equity to quiet title to one hundred and twenty acres of land. The land was at one time owned by one Peter Miller, and both the plaintiff and the defendants claim under him. The plaintiff claims under him by deed executed September 20 1877. The defendants claim by an execution sale, made in October, 1880, upon a judgment against Peter Miller, the appellant's grantor, and in favor of one Daniels. The defendants base the superiority of their title upon the alleged fact that the conveyance from Peter Miller to the plaintiff was made to defraud creditors, and upon the further alleged fact that the indebtedness for which the execution sale was made was a lien upon the land prior to the conveyance. This action was brought immediately after the execution sale. Daniels, the purchaser at the sale, was made defendant. He afterwards died. His administrator and his heirs, the present defendants, were substituted. The disposition of the case being delayed, the plaintiff, out of caution, paid to the clerk of the court the amount necessary to redeem, insisting, however, as a matter of law, that his title should be quieted regardless of the redemption, and that the court should so decree. The court held that the interest acquired under the execution sale was paramount to the plaintiff's title; that the money, however, paid by him to the clerk, operated to effect a redemption; and it directed the clerk to pay the money to the administrator of Daniels, and rendered judgment in favor of defendants. The plaintiff appeals.

REVERSED.

Geo. D Porter, for appellant.

Tannehill & Fee, for appellees.

OPINION

ADAMS, J.

This case comes to us for trial de novo, if at all. The defendants insist that it cannot be so tried. They contend, First, that the evidence is not properly certified, and, Second, that the abstract does not purport to be an abstract of all the evidence.

The objection to the certificate is that it does not purport to certify to all the evidence offered. It states that the cause was submitted upon the following testimony, "being all the evidence submitted in said cause." Then follows a statement of the evidence. All the evidence offered, as well as that introduced, should be certified. Code, section 2742; Taylor & Co. v. Kier, 54 Iowa 645, 7 N.W. 120. The certificate does not follow the language of the statute, but it must be sustained, if it complies with it in substance. The question before us must be determined upon the word "submitted," as used in the certificate. If that word is broad enough to include evidence offered, but not introduced, then the certificate is sufficient; otherwise it is not. The word submit, as applied to a cause, is in common use. Parties submit a cause when they refer it to the court or referee for disposition. The word, we think, is sometimes used as applied to evidence, though not, perhaps, with the same accuracy. Where in an equity case evidence is brought forward and placed at the disposal of the court, to be admitted or excluded, it is in some sense submitted, and such evidence is certainly offered. In our opinion the certificate is sufficient.

The next question is as to whether the abstract purports to be an abstract of all the evidence. The statement relied upon by the appellant is in these words: "It (the cause) was submitted as per agreement upon the following testimony, being all the testimony introduced in said cause." This statement is slightly inaccurate, because the evidence embraced documents as well as testimony. But it appears to us that the abstractor used the word "testimony" as synonymous with evidence.

The abstract should present to us all the evidence which we need to examine, and, if the case is to be tried de novo, the appellant should make a statement which is sufficient to show that he claims that he has presented an abstract of all the evidence. We do not examine the statement quite as critically as we do the certificate of the judge, by which the evidence is made of record, if at all. The appellant's statement is sufficient, if the opposite party and the court are fairly apprised that the appellant claims that he has presented an abstract of all the evidence. The statement may not be strictly true; but that is not the material point. If we can fairly infer, however informal the language, that the appellant claims that he had presented an abstract of all the evidence, we will assume that he has, unless the appellee sets out additional evidence, which he may always do, if he thinks that he needs it. Construing the statement, then, with such liberality as we think that we should, in view of the purpose which it was designed to serve, we have to say that we think that the appellant's statement in the case at bar is sufficient to justify us in holding that the case is triable de novo.

We come, next, to the question as to whether the conveyance from Peter Miller to the plaintiff was fraudulent; and we have to say that we think it was not. So far as the impeachment of the plaintiff's good faith is concerned, the defendants rely wholly upon what they deem unnatural circumstances. But they are not in our opinion sufficient. We have all reached this conclusion upon a separate reading of the evidence, and, while it is not very voluminous, we must be allowed to state our conclusion without setting the evidence out.

The point upon which the defendants rely, apparently with most confidence, is the alleged lien which, it is said, existed in favor of Daniels, the execution creditor, prior to the plaintiff's purchase. They claim that the judgment upon which the execution issued was rendered prior to the plaintiff's purchase. The judgment in question was for certain costs; and the difficulty, if there is any, in determining when the judgment was rendered, grows out of an irregularity. The defendants claim that the judgment was rendered on the 25th day of August, 1877--nearly a month before the plaintiff's purchase. He claims that it was not rendered until the following January. The facts appear to be substantially as follows: The costs for which the judgment was rendered accrued upon the trial of an appeal from an assessment of damages allowed in a proceeding for the establishment of a highway. The...