Cooper v. French

3 N.W. 538, 52 Iowa 531

• Court: Supreme Court of Iowa
• Decided: December 8, 1879
• Status: Published

Opinion

Adams, J.

l. pleading: FegTñonciusi°n. — I. The plaintiff averred in the seventh paragraph of his petition that “ there was no such sale of the property as law provides, and that there was no compliance with the law after the property was offered for sale.” The defendant moved to strike out the paragraph >on the ground that it averred only a con elusion of law. The motion was sustained, and the plaintiff excepted. He insists that the paragraph should be taken with other paragraphs which he claims contain averments of facts showing in what the illegality of the sale consisted. Whatever is numbered as a distinct paragraph should contain something more than a mere conclusion of law based upon statements of facts contained in some other paragraph. We think the court did not err in sustaining the motion.

2. judicial fanuretolity: make return. II. The plaintiff averred in substance in the twelfth paragraph of his petition that no return of the sale was made by sheHff until the expiration of the year of redemption. The defendant moved to strike out paragraph on the ground that the same was immaterial. In support of this allegation, and in resistance' to the motion, the plaintiff insists that he was entitled to know, from a return properly made out, not only the fact that a sale had been made, but the time when it was made.

If the sale had been legally made, it would not become illegal and void by the failure of the officer to make a return of the sale during the year of redemption. Such failure would indeed be an irregularity, and if the execution debtor was injured by it, the officer might, perhaps, be liable to him in damages. The mere failure could not, we think, have any other effect. If the return was purposely withheld by collusion with the execution creditor, and with intent to keep the execution debtor from redeeming, it might have the effect to give him a right to redeem after the year had expired. Hammersham v. Fairall, 44 Iowa, 462. But this action is not brought to redeem. In our opinion the court did not err.

agreement, III. The petition avers in substance that nothing was paid by the defendant as purchaser at the execution sale, and that was fraudulently agreed between him and the officer at the time of the sale that nothing should be paid, and that the return should be withheld until the time of redemption should expire, and that it was thus withheld. The defendant demurred upon the ground that the petition did not state facts sufficient to entitle him to relief. The court sustained' the demurrer, and the plaintiff excepted.

It is not claimed that the plaintiff' has not been credited with the full amount of the sale and as of the proper date. This is all that he is entitled to in that respect.

As to the agreement alleged to have been made at the time of the sale that no return should be made until redemption should expire, we have to say that such agreement, pertaining merely to proceedings subsequent to the sale, could not affect the sale, but only at most the plaintiff’s right of redemption. The demurrer, we think, was properly sustained. Some other errors are assigned, but they are «covered, we think, by the views which we have expressed.

Affirmed.