Wishard v. Biddle

Citation21 N.W. 15,64 Iowa 526
PartiesWISHARD v. BIDDLE AND OTHERS.
Decision Date21 October 1884
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from Polk circuit court.

Action to quiet the title to 80 acres of land in plaintiff, as against certain adverse claims of the defendants. There was judgment for plaintiff, and defendants appeal.Finkbine & McClelland, for appellants.

Wishard & Read, for appellee.

REED, J.

The land in question belonged to the university grant. In 1868 one Balinseifer entered into a contract for the purchase of the land with the treasurer of the board of trustees of the state university. The price agreed upon was $1,000, and he paid $200 when the contract was entered into, and gave his note for the remainder, payable in 10 years, with 10 per cent. interest, payable annually. The contract contained a provision that it might be forfeited by the board of trustees, at their option, for non-payment, when due, of either principal or interest. In 1873 the contract was assigned to A. M. Port. He retained it until about the eighteenth of March, 1881, when he transferred it to Thomas B. Sutton. The $800 note given by Balinseifer remained unpaid at the time of the transfer to Sutton, but he immediately paid said note, and on the nineteenth of March a patent to the land was issued to him by the state. Plaintiff subsequently purchased the land from a party to whom it had been conveyed by a grantee of Sutton. In 1877 defendant Biddle obtained two judgments against said A. M. Port in the circuit court, in causes which had been appealed to that court from a justice of the peace. Defendant Calender acted as attorney for Biddle in obtaining these judgments, and he entered in the record of the judgments notices that he claimed liens for his services in obtaining them. At about the time of the transfer of the land contract to Sutton it was agreed between him and Calender that he would execute bonds for the stay of execution on the judgments, and, in consideration of his doing this, that Calender would release the land from the lien of the judgments. In pursuance of this agreement, Sutton executed bonds in the ordinary form for the stay of execution on said judgments, which, by the request of Calender, as attorney for Biddle, indorsed thereon, the clerk accepted and approved and recorded, as required by the statute; and Calender entered on the record of the judgments releases of the land from the lien thereof, which he signed as attorney for Biddle. Plaintiff alleges in his petition that Biddle is claiming a lien on the land by virtue of said judgment, and that Calender is claiming a lien thereon by virtue of his attorney's lien, and the relief demanded is that his title to the land be quieted against these adverse claims. Defendant Biddle denies that Calender had any authority to release the interest of Port in said land from the lien of said judgments, and he claims that if the lien of the judgments was released he has a lien on the land under the bonds of Sutton for the stay of execution. Calender's claim is that he had an equitable lien on the land by virtue of his attorney's lien, and that this was not extinguished by the release of the liens of the judgments.

1. The first question to be determined is...

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