Stanbrough v. Daniels

• Decision Date: 20 May 1889
• Citation: 77 Iowa 561,42 N.W. 443
• Parties: STANBROUGH v. DANIELS.
• Court: Iowa Supreme Court

77 Iowa 561

42 N.W. 443

STANBROUGH

v.DANIELS.

Supreme Court of Iowa.

May 20, 1889.

Appeal from district court, Delaware county; J. J. NEY, Judge.

Action in equity to foreclose a lien on real estate, and to fix and limit the time of redemption therefrom by defendant. A decree was rendered for plaintiff as prayed, and defendant, Lucy Daniels, appeals.Henderson, Hurd, Daniels & Kiesel and Blair, Dunham & Norris, for appellant.

Powers & Lacy and Yoran & Arnold, for appellee.

ROBINSON, J.

The petition of plaintiff states that H. P. Chapman and wife, on the 22d day of March, 1882, executed on the land involved in this action two mortgages, both of which were recorded at the same hour in the proper records of Delaware county; that one was in favor of Emma Chase and the other in favor of Enos Yoran; that actions were brought for the foreclosure of these mortgages by the respective mortgagees in the district court of Delaware county, and a decree of foreclosure rendered in favor of the plaintiff in each case on the 15th day of February, 1887; that the parties then appearing of record to be the holders of liens on said land were not made parties to either action; that the land was sold to plaintiff on the 12th day of September, 1887, by virtue of a special execution issued on the decree in favor of said Emma Chase; that at the time of said sale the sheriff who made it held for collection a special execution issued on the decree in favor of said Enos Yoran; that on said sale plaintiff bid the amount required to satisfy both of said executions; that he is now the owner of the sheriff's certificate of sale; that he is also the owner of a decree of foreclosure rendered in favor of Mary E. Kent and against said Chapman, which is a lien on a portion of said premises senior to the liens of the two mortgages described and foreclosed as aforesaid, and that the interest thereby created is not merged in said junior decrees; that defendant, Lucy Daniels, claims or appears to have of record some interest in said premises, but such claim or interest is junior and inferior to said liens of plaintiff. The petition asks that the said lien of plaintiff be foreclosed as against said defendant, and that her equity of redemption be fixed and limited as provided by law, not extending beyond September 12, 1888, and that general equitable relief be given. By an amendment to his petition the plaintiff alleges that the defendant, Lucy Daniels, executed a deed to one Susan E. Daniels the day before the petition in this case was filed, “conveying, or purporting to convey,” all her right, title, and interest in said premises to said grantee, and making the latter a party defendant. An answer was thereafter filed by Lucy Daniels, which does not deny any material averment of the amended petition. It alleges that on the 16th day of February, 1886, plaintiff obtained a decree of foreclosure against Chapman, which authorized a special execution against the said premises; that such execution was issued, and the premises sold thereunder on the 22d day of March, 1886, to the plaintiff; that after that sale, and before the suits of Chase and Yoran were commenced, a junior lienholder paid to plaintiff the full amount of the certificate of sale, and became entitled to demand the sheriff's deed to be issued thereon; that the right to demand such deed was duly assigned to said Lucy Daniels, to whom a deed was issued in due form on the 7th day of April, 1887; that neither said defendant nor her assignee was a party to the Chase and Yoran foreclosure proceedings. To that answer plaintiff filed a reply, in which it was alleged, in substance, that said defendant was estopped from asserting a right in said premises superior to the liens of plaintiff, for the reason that the decree through which she claims title duly recognizes such liens to be superior to said decree. To the reply said defendant filed a demurrer, which was overruled. The decree recites the filing of the demurrer and the ruling thereon, and shows that evidence was introduced by the plaintiff. At the end of the decree is a statement as follows: “To all of which the said Lucy Daniels excepts,” but the record does not show any other exception by her, nor does it show that she elected to stand upon her demurrer. The decree provided that unless redemption was made from the sale of September 12, 1887, on or before September 12, 1888, by the payment of the full amount represented by the certificate of sale, then all right of defendant to the premises should be barred and forever foreclosed.

1. It is insisted by appellee that the record shows that appellant sold and conveyed her interest in the premises in controversy before this action was commenced, and that in consequence she has no further interest in the matters in controversy. It is true that appellant does not allege in terms that she has or claims an interest in said premises, and that the amendment to the petition, which is not denied, avers that the day before the petition was filed appellant “executed a deed to one Susan E. Daniels, conveying or purporting to convey” all her right and title to the premises. But the petition also charges that appellant “claims or appears to have of record”some right or title to the premises, and that, not being denied by the answer, must be taken as admitted. The reply of plaintiff as originally filed contained a division which pleaded that appellant had fully conveyed her interest in the premises before the petition was filed. Appellant thereupon moved that she be dismissed. Pending the motion, that division of the reply was withdrawn, and the motion was then overruled. It is clear that the cause was tried in the court below on the theory that appellant had some right or title to the premises, and made some claims thereto, and we are of the opinion that the pleadings justified that course.

2. Appellant has assigned errors with the view of having the ruling of the district court on the demurrer reviewed. It is claimed by appellee that no exception to such ruling was taken, and that appellant did not elect to stand on her demurrer. The general exception noted at the end of the decree indicates that exceptions to all rulings set out in the decree were taken. But that is not sufficient for the purposes of appellant. She should have elected to stand on her demu...