Shaffer v. McCrackin

• Decision Date: 12 May 1894
• Citation: 58 N.W. 910,90 Iowa 578
• Parties: MINNIE SHAFFER et al. v. JOSEPH R. MCCRACKIN et al., Appellants
• Court: Iowa Supreme Court

58 N.W. 910

90 Iowa 578

MINNIE SHAFFER et al. v. JOSEPH R. MCCRACKIN et al., Appellants

Supreme Court of Iowa, Des Moines

May 12, 1894

Appeal from Jefferson District Court.--HON. 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 the defendants appeal.

Affirmed.

Leggett & McKemey for appellants.

Jones & Fullen for appellees.

OPINION

GRANGER, C. J.

Barbara Iver was a judgment creditor of John G. Weitzel, in the sum of three thousand, nine hundred and ten dollars and fifty cents.On this judgment there are conceded payments of three thousand, five hundred and twenty dollars and fifty-six cents, made on and before June 1, 1870.Barbara Iver died and, by bequest, her husband, John Iver, became the owner of the judgment, which he assigned to the defendantJoseph 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 deceased, who was the wife of John G. Weitzel, in whom, they allege was the title to the land, and they aver 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 Iver, 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 seven hundred dollars.The district court took the case under advisement, and prepared the following opinion, showing its conclusions of fact and law:

"I.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 seven hundred dollars 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. on Judgm., section 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 seven hundred dollars payment was in fact made within his personal knowledge.This testimony is competent and pertinent.It can not 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.

"II.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 seven hundred dollars, is incompetent--First, because items of money received or paid are not the subject of book account, and can not be proved in that way (Veiths v. Hagge, 8 Iowa 163);Young v. Jones,8 Iowa 219); second, the proper foundation was not laid for the introduction of said book (McClain's Code, section 4908;1 Greenl. Ev., section 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 seven hundred dollars 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.andEng. Encyclopedia of Lawp. 150e, note 6, and authorities there cited;Craft v. Merrill, 14 N.Y. 456;Carpenter v. Stilwell, 11 N.Y. 61.The judgment is the power back of, and authorizing, the...