Sprague v. White

• Decision Date: 31 December 1887
• Citation: 35 N.W. 751,73 Iowa 670
• Parties: SPRAGUE v. WHITE.
• Court: Iowa Supreme Court

73 Iowa 670

35 N.W. 751

SPRAGUE

v.WHITE.

Supreme Court of Iowa.

December 31, 1887.

Appeal from district court, Adair county; J. H. HENDERSON, Judge.

Plaintiff, O. H. Sprague, brought an action in equity to quiet in him the title to certain real estate. He claims title under a master's deed, given under a sale by a master in chancery of the United States circuit court for the Southern district of Iowa, under a judgment for the foreclosure of a mortgage. Defendant, Alvira White, alleged that she was the owner of the property. The district court adjudged that defendant was entitled to redeem from the mortgage sale, and the judgment determines the amount which she is required to pay in making the redemption. Both parties appealed.C. S. Fogg and C. W. Neal, for plaintiff.

Gow & Hager, for defendant.

REED, J.

The facts as we find them to be are as follows: Prior to the second of December, 1876, John White, who was defendant's husband, was the owner of the property, and on that day he conveyed it to her. Subsequently, W. M. Rogers recovered a judgment against said John White, and defendant became surety on the bond for the stay of execution thereon. On the sixth of March, 1878, defendant and her husband conveyed the premises to L. L. Durham, and the conveyance was duly recorded. On the eleventh of May following, the property was sold on execution issued on the Rogers judgment, the judgment plaintiff being the purchaser, and a sheriff's deed was executed to him, and on the twenty-first of the same month he executed to Durham a quitclaim deed of the premises. There was a parol agreement between Durham and defendant and her husband that, upon the payment of certain moneys which he had advanced to them, he would reconvey the property to John White. Defendant and her husband remained in possession of the property up to the time of the death of the husband, which occurred on the second of October, 1881, after which defendant continued in possession. On the seventh of January, 1880, Durham, by direction of John White, executed a conveyance of the property to Orlando White, who is the son of John White by a former marriage. That deed remained in John White's possession until his death, when Orlando obtained possession of it, and caused it to be recorded. On the fifth of November, 1881, Durham executed a conveyance of the property to defendant and the surviving children of John White. That deed was delivered to defendant at the date of its execution, but has never been recorded. On the thirtieth of November, 1880, Durham executed a mortgage on the property to Lewis Lombard, to secure an indebtedness of $600. In January, 1883, defendant filed her petition in the district court, in which she alleged that the property belonged to John White at the time of his death, and she prayed that her distributive share therein be admeasured. Orlando White was made defendant in the action, and he answered, alleging title to the property in himself under the deed from Durham of January 7, 1880. In her reply defendant alleged that said deed was without consideration, was never delivered, and that Orlando obtained possession of it by fraud, and she prayed that it be canceled. The issue thus joined was tried on the sixth of February, 1886, and judgment was entered for defendant establishing her right to a distributive share of the property, and the court appointed commissioners to admeasure such share, and the commissioners subsequently filed a report of their doings in the premises, which has been approved by the court. On the twentieth of December, 1884, Lombard brought suit for the foreclosure of the Durham mortgage, making Durham and Orlando White defendants, and a judgment of foreclosure was entered on the twentieth of May, 1885; and, on the twenty-second of July following, the property was sold by the master under the judgment, Lombard being the purchaser. He subsequently assigned the certificate of purchase to plaintiff, and, at the expiration of one year from the date of the sale, the master executed to him a deed of the premises.

No question is made as to the validity of the mortgage, but the sole question in the case is whether defendant is barred of the right to redeem from the mortgage by the foreclosure proceedings, and the sale and deed thereunder. As Durham, at the request of John White, executed and delivered to him the deed to Orlando White, the strong presumption is that the condition upon which he was to reconvey the land had been performed; but, as that deed was never delivered to Orlando, it never became effective as a conveyance. At his death, then, John White was the equitable owner of the property, but the legal title was in Durham;...