Brady v. Otis

40 Iowa 97

• Court: Supreme Court of Iowa
• Decided: December 14, 1874
• Status: Published

Opinion

Beck, J.

Plaintiff ’s title to the lands in controversy is based upon a proceeding in bankruptcy in the IT. S. District Court for the state of Alabama, wherein one Broom was declared a bankrupt, and the property in question, being a part of the assets, was sold to plaintiff’s grantor.

Defendant, Lockhart, now claims title to the land through a conveyance from the other defendant, Otis, who acquired title under a quit claim deed executed by the bankrupt after the proceedings in bankruptcy were instituted.

I.. The defendants claim that the deed of the Register in 1. deed: from an ill cy: notice. banfrupt-Bankruptcy to the assignee was not duly acknowledged and recorded,, and therefore they are not charged with constructive notice thereof, and that they had no actual notice of plaintiff’s title.

The allegation of fact as to the acknowledgeriient and record of this instrument may be admitted, yet the deed is good against all persons chai’ged with notice. That defendant, Otis, had notice cannot be denied. lie had personal knowledge of plaintiff’s claim of title,, had negotiations to purchase the land from him, had obtained the quit claim deed from the bankrupt representing that he desired it to perfect his title already acquired, was advised, by the bankrupt himself that- it had been sold in the bankrupt proceeding, and paid only-a trifle, $20, for the deed, which was the amount of expenses incurred by the grantor in executing the instrument.

II. The other defendant, Lockhart, made the purchase without the payment of one cent, tjhe whole amount of the 2.-; —: notice. purchase money being secured by a mortgage to Otis. Before Lockhart made any payment he had full notice of plaintiff’s title. He cannot be protected as one having made payment for the land before plaintiff’s title came to his knowledge. He was in a condition to refuse payment, and it must be regarded, therefore, as voluntary and with notice.

III. It is insisted that the deed of the assignee of the bankrupt is not sufficient to convey title, but is void, because it does not recite the proceedings in bankruptcy. Without inquiry into the effect of such omission, did it in fact exist, we are of the opinion that the decree of bankruptcy and the appointment of the assignee, matters which it is claimed do not appear in the deed, and which are the foundation of this objection, are sufficiently rehearsed.

IT. The petition of plaintiff was verified by his attorney. A motion was made by defendants and overruled to strike out 3.. verifica-nos": when made by án attorney. Otis’ answer was not verified, that reason was stricken from the files. These rulings are complained of. We think the the verification. nnfi anu ioi affidavit of verification of the petition shows that the attorney was competent to make the verification; it shows his knowledge of the facts stated, and the source of it. The plaintiff could hardly have derived information from a different source, or- possessed other or- greater knowledge- of the facts. Rev., §§ 2908, 2909. Code, §§ 2672, 2673.

The petition being verified, it should have been answered by a pleading under oath, and because it was not the answer was properly stricken out.. Rev., §§ 2904, 2916. Code, §§ 2669, 2677.

In our opinion the decree of the District Court is well supported by the law and the evidence found in the record. It is therefore

AFFIRMED