Ettenheimer v. Northgraves

Supreme Court of Iowa

Ettenheimer v. Northgraves

39 N.W. 120, 75 Iowa 28

CourtSupreme Court of Iowa

DecidedSeptember 6, 1888

StatusPublished

Cited by4 cases

This text of 39 N.W. 120 (Ettenheimer v. Northgraves) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ettenheimer v. Northgraves, 39 N.W. 120, 75 Iowa 28 (iowa 1888).

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Opinion

Seevees, C. J.

— I. It will be conceded that the plaintiffs have established the claimed mistake in drafting the mortgages. One material question discussed by counsel is whether Booker had notice or such knowledge of the mortgages and of the mistakes prior to his purchase at sheriff’s sale as to put him on inquiry. There is some evidence that tends to show that he had. But, after a careful reading of the evidence, we unite with the court below in the conclusion that the plaintiffs have failed to establish such proposition by a preponderance of the evidence. The evidence which has such tendency is not so direct, certain and satisfactory as to overcome the denials of Booker and Wills, who testify that,' while they had knowledge of the mortgages, they did not have any knowledge of the mistake in describing the land.

„ _ at execution t?on: proteo' II. It is insisted that Booker is not an innocent purchaser. He was a judgment creditor, and purchased at a sale under an execution issued on his lodgment. As he bid the full amount of his judgment, it was thereby satisfied of record. As there are no controlling equities, [30]*30we feel bound by the prior decisions of this court, in which it has been several times held that a judgment creditor, who purchased real estate at a sale under execution, in the absence of notice of an outstanding equity, is an innocent purchaser for value, and entitled to protection as such. Evans v. McGlasson, 18 Iowa, 150 ; Halloway v. Platner, 20 Iowa, 121; Gower v. Doheney, 33 Iowa, 36 ; Weaver v. Carpenter, 42 Iowa, 343.

3. redemption: tio“saS?0U' Fienfdextension of time. III. Plaintiffs insist that they are at least entitled to redeem from the sale to Booker. A decree ' was entered in this proceeding, in January, 1887, making the requisite correction in the mortgages, which certainly became a pen on -¿he land in controversy at that time; and as the statutory right to redeem had not expired, the plaintiffs, as a matter of right, were entitled to redeem under the statute. Code, sec. 3104. They declined to avail themselves of such right, nor did they, until the first day of June, 1887, which was after Booker was entitled to and had obtained a sheriff ’ s deed conveying the premises in controversy to him, ask for or intimate that they desired to redeem. Conceding that the power exists to extend the period allowed by statute to redeem, there are no circumstances in this case which will justify us in so doing. Affirmed. f

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Seevees, C. J.

— I. It will be conceded that the plaintiffs have established the claimed mistake in drafting the mortgages. One material question discussed by counsel is whether Booker had notice or such knowledge of the mortgages and of the mistakes prior to his purchase at sheriff’s sale as to put him on inquiry. There is some evidence that tends to show that he had. But, after a careful reading of the evidence, we unite with the court below in the conclusion that the plaintiffs have failed to establish such proposition by a preponderance of the evidence. The evidence which has such tendency is not so direct, certain and satisfactory as to overcome the denials of Booker and Wills, who testify that,' while they had knowledge of the mortgages, they did not have any knowledge of the mistake in describing the land.

„ _ at execution t?on: proteo' II. It is insisted that Booker is not an innocent purchaser. He was a judgment creditor, and purchased at a sale under an execution issued on his lodgment. As he bid the full amount of his judgment, it was thereby satisfied of record. As there are no controlling equities, [30]*30we feel bound by the prior decisions of this court, in which it has been several times held that a judgment creditor, who purchased real estate at a sale under execution, in the absence of notice of an outstanding equity, is an innocent purchaser for value, and entitled to protection as such. Evans v. McGlasson, 18 Iowa, 150 ; Halloway v. Platner, 20 Iowa, 121; Gower v. Doheney, 33 Iowa, 36 ; Weaver v. Carpenter, 42 Iowa, 343.

3. redemption: tio“saS?0U' Fienfdextension of time. III. Plaintiffs insist that they are at least entitled to redeem from the sale to Booker. A decree ' was entered in this proceeding, in January, 1887, making the requisite correction in the mortgages, which certainly became a pen on -¿he land in controversy at that time; and as the statutory right to redeem had not expired, the plaintiffs, as a matter of right, were entitled to redeem under the statute. Code, sec. 3104. They declined to avail themselves of such right, nor did they, until the first day of June, 1887, which was after Booker was entitled to and had obtained a sheriff ’ s deed conveying the premises in controversy to him, ask for or intimate that they desired to redeem. Conceding that the power exists to extend the period allowed by statute to redeem, there are no circumstances in this case which will justify us in so doing. Affirmed. f

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