Moore v. Jeffers

• Decision Date: 19 March 1880
• Citation: 4 N.W. 1084,53 Iowa 202
• Parties: MOORE AND OTHERS v. JEFFERS.
• Court: Iowa Supreme Court

53 Iowa 202

4 N.W. 1084

MOORE AND OTHERS

v.JEFFERS.

Supreme Court of Iowa.

Filed March 19, 1880.

Appeal from Black Hawk district court.

This is an action for the possession of a certain described tract of land, and for recovery of damages, in the sum of $500, for the use and possession thereof. The action was commenced on the twentieth day of August, 1878. The defendant answered, in substance alleging that on the tenth day of April, 1872, the plaintiffs executed to one John L. Farwell a mortgage on said premises, to secure the payment of the sum of $700 on the first of January, 1877, with interest; that default having been made in the payment of said sum action was commenced in the circuit court of the United States, for the district of Iowa, for the recovery of the amount due and the foreclosure of the mortgage, and on the twenty-sixth day of May, 1877, it was adjudged and decreed that the respondents in that action pay the complainant $841, with interest, and in default of payment that the land be sold; and E. R. Mason, one of the masters of the court, was appointed to execute the decree, and directed, on making sale of the premises, to execute a deed to the purchaser.

That said master sold said premises to John L. Farwell, and executed a deed therefor to him, which sale and deed the court, on the 4th day of December, 1877, ratified, approved, and confirmed. That the respondents having refused to surrender possession, a writ of assistance of the United States of America was directed to the marshal, commanding him to put the said Farwell in possession of the premises. That the marshal executed said writ and placed Farwell in possession of the premises, and that Farwell conveyed the premises to the defendant.

The defendant claims that by these proceedings the plaintiffs are estopped from setting up any claim to the premises.

The prayer of the petition in the foreclosure proceeding is attached as an exhibit to the answer, and is as follows: “That defendants * * * * be decreed to pay to the said complainant said principal sum of money, and all arrears of interest, according to the tenor of said note, together with 10 per cent. interest upon the said principal sum and unpaid interest, with your orator's costs and charges in their behalf expended, and the sum of $40 as attorney's fees herein, by a day to be appointed by this court, and in default thereof that said defendants, and all persons claiming under them, or either of them, be foreclosed of and from all equity of redemption, and all claim of, in or to said mortgaged premises, and every part thereof. That said mortgaged premises, with the appurtenances, may be sold under the decree of this court, and that out of the money arising from the sale thereof complainant may be paid the principal sum due on said note and mortgage, and all interest money due and to become due thereon, together with his costs and charges, and the sum of $40 for solicitor's fees, and that your orator shall have such other and further relief as shall be agreeable to equity and good conscience.”

The decree, a copy of which is attached to the defendant's answer as an exhibit, orders that respondents pay to complainant, on or before October 1, 1877, said sum reported to be due, and in default of such payment that the premises be sold at public sale, at the door of the United States court-house, at the city of Des Moines, in the state of Iowa, upon due notice, as required by the laws of the state of Iowa, in respect to sales on execution. The decree then proceeds as follows:

“It is further ordered, adjudged and decreed that E. R. Mason, Esq., one of the masters of this court, be and he is hereby appointed to execute this decree, and the said master, on making sale of the said premises as herein ordered and decreed, do make and execute unto the purchaser or purchasers of the said lands a deed conveying all the right, title, interest, estate and property of said respondents, and each of them, in and to the said lands, and every part or parcel thereof, as well as the interest of all persons claiming by, through, or under them, or any of them, since the date of the mortgage.

It is further ordered, adjudged and decreed that at and upon the sale of said lands, as herein ordered, the said respondents, and each of them, be forever debarred and foreclosed from setting up any right, title or interest, at law or in equity, in or to the said above described lands, or any part thereof; and that upon the delivery of the deed to be executed to the purchaser or purchasers, as aforesaid, pursuant to this decree, they, and each of them, and all persons claiming under them, or any of them, since the filing of said bill of complainant herein, do immediately surrender and deliver up to the purchaser or purchasers aforesaid the possession of the said lands, and every part thereof.

It is further ordered, that the said master do make due return of all his proceedings under this decree to this court, for its action thereon, before delivering the deed for the said lands to such purchaser or purchasers, and that this cause do stand continued until the execution of this decree.”

The plaintiffs demurred to this answer. The demurrer was overruled. The plaintiffs elected to stand upon their demurrer, and judgment was rendered against the plaintiffs for the costs. The plaintiffs appeal.

Alford & Elwell, for appellants.

Brown & Campbell, for appellee.

DAY, J.

The Revised Statutes of the United States provide as follows:

“Section 913. The forms of mesne process, and the forms and modes of proceeding in suits of equity, and of admiralty and maritime jurisdiction, in the circuit and district courts, shall be according to the principles, rules and usages which belong to courts of equity and of admiralty respectively, except when it is otherwise provided by statute, or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts, respectively, and to regulation by the supreme court by rules prescribed from time to time, to any circuit or district court, not inconsistent with the laws of the United States.”

“Sec. 914. The practice, pleadings, forms and modes of proceeding in civil causes, other than equity and admiralty causes in the circuit and district courts, shall conform as near as may be to the practice,...