Shaffer v. McCrackin

• Decision Date: 12 May 1894
• Parties: SHAFFER ET AL. v. MCCRACKIN ET AL.
• Court: Iowa Supreme Court

90 Iowa 578

58 N.W. 910

SHAFFER ET AL.

v.MCCRACKIN ET AL.

Supreme Court of Iowa.

May 12, 1894.

Appeal from district court, Jefferson county; H. C. Traverse, Judge.

Action to set aside a sheriff's sale of certain premises, and to quiet the title to the same in the plaintiffs. Decree for plaintiffs, and defendants appealed. Affirmed.Leggett & McKemey, for appellants.

Jones & Fullen, for appellees.

GRANGER, C. J.

Barbara Irrer was a judgment creditor of John G. Weitzel, in the sum of $3,910.50. On this judgment there are conceded payments of $3,520.56, made on and before June 1, 1890. Barbara Irrer died, and by bequest her husband, John Irrer, became the owner of the judgment, which he assigned to the defendant Joseph R. McCrackin, who took execution on the judgment, levied on the land in question, and after sale, and the expiration of redemption, he took a sheriff's deed therefor. Minnie Shaffer and her coplaintiffs are heirs of Amelia Weitzel, now deceased, who was the wife of John G. Weitzel, in whom, they allege, was the title to the land, and that it was not the land of John G. Weitzel at the time of the levy and sale, but that of Amelia Weitzel, and that her heirs are the owners thereof. Some conveyances of the land were made that need not be set out. They also allege that, prior to the assignment of the judgment to defendant McCrackin, it had been fully paid, and issue was taken thereon. The payment, if made, was to the attorneys of Barbara Irrer, Slagle & Acheson, who represented her in her suit in which the judgment was obtained. Slagle and Acheson are both deceased. The payment, if made, was about $700. The district court took the case under advisement, and prepared the following opinion, showing its conclusions of fact and law:

“(1) Was the judgment on which the land in question was sold paid off before the sheriff's sale? This will depend on whether the alleged $700 payment on said judgment was in fact made. The payment of a judgment may be proved by parol evidence. Hollenbeck v. Stanberry, 38 Iowa, 325. Payment made to the attorney of record who procured the judgment, before his authority is revoked, or before due notice of such revocation is given to the judgment defendant, is binding on the judgment plaintiff. 2 Black, Judgm. § 986. The assignee of a judgment takes it subject to all equities and defenses. School District v. Schreiner, 46 Iowa, 172. Mr. I. D. Jones testifies that the alleged $700 payment was in fact made within his personal knowledge. This testimony is competent and pertinent. It cannot be disregarded. And Mr. Jones, in his evidence, states the circumstances of said payment so clearly, so fully, and with such minuteness of detail, that I am not at liberty to say that he is mistaken, or that the facts have faded from his memory.

(2) What evidence is produced against this positive testimony of Mr. Jones? Really, there is none. The account book of Messrs. Slagle & Acheson, to prove the nonpayment of the $700, is incompetent--First, because items of money received or paid are not the subject of book account, and cannot be approved in that way (Veiths v. Hagge, 8 Iowa, 163; Young v. Jones, Id. 220); second, the proper foundation was not laid for the introduction of said book (McClain's Code, § 4908; 1 Greenl. Ev. § 118, note); and, third, the book being introduced to prove a negative, it should for that reason be shown that all the account books of Slagle & Acheson, likely to contain the $700 item, are before the court. How can you prove that an item was not entered on any book by simply introducing one book in evidence, and without showing that to be the only account book? A sale of property under a judgment which has been satisfied is void, even though the satisfaction does not appear of record, and the purchaser has no knowledge that the judgment has been paid. 12 Am. & Eng. Enc. Law, p. 150e, note 6, and authorities there cited; Craft v. Merrill, 14 N. Y. 456; Carpenter v. Stilwell, 11 N. Y., on page 71. The judgment is the power back of, and authorizing, the execution sale. If the judgment has been paid off, the power is...