Kellogg v. Decatur County

38 Iowa 524

• Court: Supreme Court of Iowa
• Decided: June 15, 1874
• Status: Published

Opinion

Day, J.

í school ciosm4 smci" sale: mistake. — The mistake is clearly established. Plaintiffs’ ancestor contracted for 520 acres, paying $165 down, and executed his note for $495, which was just ten dol^ai’s 011 entire tract more than one dollar and a qUarter an acre. The contract was foreclosed, and a special execution was directed to issue against all the land, described in the decree as the N \ and the SW J and the NW J SE i of the section.

In carrying the-judgment from the court record, to the judgment docket, the Clerk entered the land as the N -J SW £ and the NW SE ¿ of the section, being 120 acres instead of 520 acres. The same mistake was carried into the execution and the subsequent proceedings.

The land was bidden off in the name of the State for the whole amount of the judgment, $720. The evidence shows that the land was worth not more than $1.50 an acre. The evidence satisfies ns that the county did not intend to pay $3 an acre for land that was worth but one-fourth that sum, and which the county had sold for $1.25 an acre.

If plaintiffs should succeed, they would get the lands for less than one-tliird what their ancestor agreed to pay for them, and this, notwithstanding his failure to comply with the terms of his contract with the county.

2 -: statturas. Plaintiffs’ claim is unjust and inequitable and has no support in law. It is intimated in the argument of appellant that defendants cannot avail themselves of the mistake, because of the statute of limitations. Revision, § 2740, paragraph 3. We have held, however, that the statute of limitations does not apply to a case such as this. JTullum, tem,pus oocv/r-rit regi. The County of Des Moines, for the use of etc., v. Harker, 34 Iowa, 84.

The petition for mandamus was properly dismissed.

8 _. mis_ take: re-saie. Inasmuch, however, as the estate of O. N. Kellogg may have been prejudiced by the sale, on account of the mistake alluded to, and to the end that complete justice may pe qone) the sale and satisfaction of judgment will be set aside, and a re-sale of the entire premises ordered. Upon the re-sale the entire premises will be put up upon the bid of the county of the judgment, interest and costs, and if no more is offered, the same shall again be sold to the county, and satisfaction of the judgment entered.

The appellants will pay the cost of appeal. Thus modified, the judgment is

Affirmed.