Stanbrough v. Cook

• Decision Date: 26 October 1891
• Citation: 83 Iowa 705,49 N.W. 1010
• Parties: STANBROUGH v. COOK.
• Court: Iowa Supreme Court

83 Iowa 705

49 N.W. 1010

STANBROUGH

v.COOK.

Supreme Court of Iowa.

Oct. 26, 1891.

Appeal from district court, Delaware county; D. J. LENEHAN, Judge.

Action to recover the value of certain pasturage and crops alleged to have belonged to plaintiff, and to have been wrongfully appropriated by defendant, and converted to his own use. There was a trial by the court, without the intervention of a jury, and a judgment in favor of defendant. The plaintiff appeals.Powers & Lacy and Yoran & Arnold, for appellant.

Henderson, Hurd, Daniels & Kiesel, for appellee.

ROBINSON, J.

The pasturage and crops in controversy grew on land which is owned by plaintiff. He obtained the title as follows: In March, 1882, H. P. Chapman, then the owner of the land, executed a mortgage thereon to one Emma Chase, which was duly recorded on the 1st day of April of that year. That mortgage was foreclosed by a decree which was rendered on the 15th day of February, 1887. On the 12th day of the next September the land was sold to plaintiff under the decree of foreclosure, and on the 15th day of September, 1888, a sheriff's deed therefor was executed and delivered to plaintiff, and duly recorded. Defendant took possession of the premises in March, 1888, under a lease made to him by Susan E. Daniels. She claimed title from Chapman through the foreclosure of a mortgage given by him on the 1st day of March, 1884. That mortgage was foreclosed, the property in controversy sold under the decree of foreclosure, and on the 7th day of April, 1887, a sheriff's deed therefor was issued to Lucy Daniels. On the 26th day of October, 1887, she conveyed the interest she acquired by the sheriff's deed to the lessor of defendant. Some questions in regard to the title under which the parties to this action respectively claim were considered in Stanbrough v. Daniels, 77 Iowa, 562, 42 N. W. Rep. 443. A decree of foreclosure was rendered in favor of plaintiff in that case, and the time for redemption was extended by this court for the period of 90 days from the 20th day of May, 1889. Susan E. Daniels had been made a party to that action, but was served with notice thereof by publication only, and did not appear therein until after the rendition of the decree, which was in March, 1888. In January, 1890, she appeared in the district court, and on her application it was ordered that there be a retrial of the cause so far as it affected her, and that she be permitted to make defense. She thereupon filed an answer, in which she set out several defenses, but it does not appear that there has yet been a retrial.

1. The defendant was not made a party to any of the foreclosure proceedings affecting the land, and his rights and those of his lessor have never been adjudicated excepting by the decree in the case in which the retrial was ordered. About the 15th day of September, 1888, plaintiff demanded of defendant the possession of the premises; and on the 11th day of October, 1888, plaintiff served upon defendant a notice in writing to quit and surrender the premises within three days. On the 2d day of the next month plaintiff notified defendant to quit and surrender the premises within 30 days, and on the 22d day of December, 1888, and again on the 24th day of August, 1889, similar notices were served. This action was commenced on the 30th day of October, 1889. Prior to that date defendant had paid to Susan E. Daniels all the rent which had become due by the terms of her lease. The petition alleges that plaintiff is and has been since the 15th day of September, 1888, the owner in fee-simple of the premises in controversy, and that he has been entitled to the exclusive use and occupation thereof at all times since that date, and that during that time defendant has wrongfully occupied the premises, and has wrongfully gathered and converted the crops and products therefrom to his own use. Judgment for $1,000 and costs, and for an injunction to restrain defendant from a repetition or continuance of the wrong, is demanded.

The case of Stanbrough v. Daniels was commenced in October, 1887. On the 1st day of the next month an amendment to the petition making Susan E. Daniels a party defendant was filed. The relief asked was the foreclosure of the lien of plaintiff represented by the sheriff's certificate of sale held by him, and the fixing of a time, as against all the defendants, not extending beyond September 12, 1888, within which redemption from the sheriff's sale should be made; and, if redemption was not made within the time fixed, then that defendants beforever estopped from claiming any interest in the premises in controversy. The demand for relief was based upon a sufficient statement of facts in the petition as amended, and from the time the amendment was filed all parties interested in the premises had constructive, if not actual, notice of the title thereto of the plaintiff and of Susan E. Daniels. The last-named person was adjudged in default for want of an appearance on the 20th day of March, 1888, and on the same day the court found against all of the defendants, and in favor of plaintiff, adjudging his lien as represented by his certificate of sale to be paramount and superior to that of each and all of the defendants, and decreeing that, unless redemption from the sheriff's sale should be made on or before the 12th day of September, 1888, all the right, title, and claim of the defendants should be absolutely and forever barred and foreclosed. Defendant took his lease a short time before the decree was rendered, but with constructive notice that plaintiff demanded and claimed to be entitled to the premises. His lease was therefore subject to all the rights of plaintiff, and he acquired no greater right to occupy and use the premises than that possessed by his lessor. The title of the lessor had been acquired through a mortgage which was junior to that under which plaintiff claimed, and to which it was subject. Downard v. Groff, 40 Iowa, 597;Shricker v. Field, 9 Iowa, 371; Shaw v. Heisey, 48 Iowa, 468; 2 Freem. Ex'ns, § 335. The interest acquired by the defendant, as fixed by the decree, was the right to occupy and use the premises until the 12th day of September, 1888, and no longer, unless redemption was made. The fact that he was not made a party to the foreclosure proceedings did not enlarge his rights, nor affect those of plaintiff fixed by the decree, for the reason that the litigation was pending when the lease to defendant was given. He was bound by the judgment, although not made a party to it. Code, § 2628; Jackson v. Railway Co., 64 Iowa, 294, 20 N. W. Rep. 442, and authorities therein cited.

2. It is said that the foreclosure proceedings, as against Susan E. Daniels, are still pending, and that the decree rendered against her by default is entitled to no weight as an adjudication of her interests and the rights created by her lease to defendant. Her application for leave to make defense in the action was authorized by section 2877, Code. That provides that when a judgment has been rendered against a defendant, who did not appear, and who was served by publication only, he may appear at any time within two years after the rendition of the judgment, and move to have the action retried, and, security for costs being given, that he shall be admitted to make defense. It further provides that, when that is done, “the action shall be retried as...