Spurgin v. Bowers

CourtUnited States State Supreme Court of Iowa
Citation47 N.W. 1029,82 Iowa 187
PartiesSPURGIN v. BOWERS.
Decision Date05 February 1891

OPINION TEXT STARTS HERE

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

Edward Murray was unmarried and died testate on the 25th day of June, 1887, possessed of real and personal property. A provision of his will is in words as follows: “I give and bequeath to Ezra Murray, my fourth son, one-eighth of my estate.” Ezra Murray was a non-resident of this state, and indebted to the defendant on a promissory note. On the 20th day of July, 1887, the defendant commenced a suit in the district court of Marion county on the note against Ezra Murray, and aided the same by attachment, by virtue of which the supposed interest of Ezra in his father's real estate was attached. The service by which the court took jurisdiction was by publication only. There was no appearance by Ezra, and upon final hearing a judgment was entered for the amount of the note, $129.38, with costs and attorney's fee. There is a controversy as to the character of the judgment, whether personal or in rem, but for the purposes of the case it will be regarded as the latter. By regular course “the interest of E. D. Murray (Ezra) was sold on execution to defendant, and with the expiration of redemption a deed was obtained. On the 5th of September, 1887, the plaintiff was appointed administrator of the estate of Edward Murray, and on the 25th of September, 1887, he filed his petition in the district court of Marion county for an order to sell all the lands of which Edward Murray died seised for the payment of the debts of the estate. Due and legal notice was given of the pendency of the application to all parties interested in the real estate, except defendant, as to whom no service was attempted. On the 14th day of January, 1888, upon default entered of all the parties served with notice, an order was made for the sale of the real estate as prayed. This action is brought by the plaintiff to cancel the conveyance to the defendant, and declare his lien or interest therein junior and inferior to that of the creditors of the estate, on the ground that the conveyance operates as a cloud upon the title, because of which plaintiff is unable to sell the same and give title thereto. The objection to such a decree will be considered in the opinion. The district court gave a decree for the plaintiff, and the defendant appealed.L. Kinkead, for appellant.

Jas. D. Gamble, for appellee.

GRANGER, J.

The answer to the petition and the arguments in the case by appellant present very many objections to the decree of the district court. Having in view one fact that should be without dispute, and we may be aided much to a speedy conclusion, which is that the claim of Ezra Murray, and hence of the defendant, to the land is secondary to that of the plaintiff for the benefit of the creditors. The claim of appellant is not to any specific portion of the land, but to an undivided one-eighth. The order of the court was not to sell a specific part, but the whole. The contention of appellant is not that the order for sale is inoperative as to the interest he claims, but as to the whole. He makes certain denials, and then, by affirmative allegations, questions the correctness of the proceedings of the probate court; such as that all persons in interest were not served with notice; that the petition did not contain a statement of all the claims against the estate; that the executor did not render a full account of the disposition made of the personal effects of the estate; that the order was made without jurisdiction of all persons interested in the land; and that the administrator had not admitted or approved the claims against the estate, etc.; and asks relief as follows: “Wherefore the defendant asks that said order directing said executor to sell said lands be canceled and set aside, together with all proceedings thereunder; and further asks that said executor be estopped from paying or recognizing the said claims filed against said estate...

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1 cases
  • Clark v. Rossier
    • United States
    • Idaho Supreme Court
    • 3 Octubre 1904
    ... ... 210; McNare v. Hunt, 5 Mo ... 301; Tutt v. Boyer, 51 Mo. 425; Capt v ... Stubbs, 68 Tex. 222, 4 S.W. 467; Spurgen v. Bowers, an ... Iowa case, reported in 82 Iowa 187, 47 N.W. 1029.) The ... confirmation or approval of the sale by the court is the ... judicial ... Boyer, 51 Mo. 425, that the approval ... by the probate court of an administrator's deed cannot be ... collaterally impeached. ( Spurgin v. Bowers, 82 Iowa ... 187, 47 N.W. 1029.) ... In ... Ryan v. Fergusson, 3 Wash. 356, 28 P. 910, the ... supreme court of Washington ... ...

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