Oleson v. Bullard

40 Iowa 9

• Court: Supreme Court of Iowa
• Decided: September 25, 1874
• Status: Published

Opinion

Day, J.

The proof shows that plaintiff was the wife of John Oleson, and afterward of T. Oleson, that she is now a widow, and that she resided on the N.E. \ of section 32, for ten or twelve years, as her homestead.

It-is claimed that plaintiff’s right to this homestead is not cut off by the decree and sale, because: 1. The court, in its decree subjected the N.E. J of section 32, to the lien of both mortgages, and directed the same to be sold for the amount found due upon the Tykerson and defendant’s notes.

The Tykerson mortgage was executed by plaintiff and her husband, to secure $800. The mortgage to defendant was executed by T. Oleson alone, to secure $1,693.10. Defendant bought the Tykerson mortgage, and foreclosed both in the same action. Due notice of the action to foreclose was personally served upon Tron Oleson and the plaintiff Anna Oleson.

In the petition for foreclosure, “ Iiosea Bullard claims of Tron Oleson, the sum of $679.82, and interest at 10 per cent, from February 1st, 1871, on four promissory notes executed to Evan Tykerson, guardian of minor heirs of John Oleson, deceased, and assigned to plaintiff, and $1,693.10 and interest at 10 per cent, from February 12th, 1869, and $169.31, interest at 10 per cent from February 12th, 1870; and $169.31, and interest at 10 per cent, from February, 12th, 1871, on a promissory note executed by Tron Oleson, to 'plaintiff; and the foreclosure of two mortgages, one executed by Tron and Anna Oleson, on N.E. J, 31, 97, 8. to secure first sum aforesaid, and one executed by Tron Oleson, on N. §, S.E. J- and N.E. J, 32, 97, 8, to secure payment of last note, and that all the rights, liens, equities of redemption and interest of all the defendants be forever barred and foreclosed.”

The Tykerson mortgage was a lien upon the homestead, because executed by both husband and wife.

The Bullard mortgage, executed by the husband alone, created no lien upon the portion of the premises occupied as 1. HOMESTEAD forclosure: husband and wife. a homestead. As to that it would be void. But fhe a P01’tion of the premises described was a homestead not appearing, or not being shown, the mortgage, prima faeie, was valid, and created a lien subject merely to the wife’s inchoate dower right. 'When the plaintiff was made a party to the foreclosure proceeding, in which a foreclosure was asked as to the Bullard mortgage upon all the property described”in it, it was incumbent upon plaintiff to appear and interpose as a defense any matter showing that the mortgage, as to a part of the premises, was inoperative. The fact that a part of the premises was a homestead did not appear in the mortgage nor upon the face of the petition. Plaintiff made default in the foreclosure suit, and there was nothing to call the attention of the court to tlie fact that a portion of the property described in the Bullard mortgage was a homestead. The decree of foreclosure was therefore properly entered, and plaintiff is thereby precluded from insisting upon the invalidity of the mortgage as to the homestead. See Larson v. Reynolds, 13. Iowa, 579; and Haynes v. Meek, et ux., 14 Iowa, 321.

The case of Moomey v. Maas, 22 Iowa, 380, cited and relied on by appellant, sustains rather than controverts this view. That wás a foreclosure of a mortgage not executed by the wife, and she was made a party to the foreclosure proceeding. It was held that her dower was not affected. But it was based upon the fact that no claim inconsistent with her dower right was made in the petition. The court say: “ Her right to dower ivas paramount to the right of the mortgagee; and the facts showing it appeared on the face of the petition;” and further: “To prevent a misapprehension of the point here ruled, we may add, that if the wife had joined in the mortgage, or her right of dower had been put in issue, or questioned by allegations in the petition, it would doubtless have been incumbent upon her to have appeared and defended, or else be bound by the decree and sale.”

To the same effect is Standish v. Dow et al., 21 Iowa, 363. In the case at bar, however, the allegation that T. Oleson executed a mortgage upon the property described, and the claim that the mortgage be foreclosed, is directly hostile to the claim that part of the mortgaged premises was plaintiff’s homestead.

II. It is claimed, however, that the failure to appear and defend, was because of the fraud of defendant. We have 2. fuaud: ovi-closure. carefully examined the abstract, in Connection with the amended abstract of appellee, and we cannot find that the evidence sustains this claim. It does not appear that anything was said or done by defendant, before the foreclosure, to prevent plaintiff defending that action. Erom the whole evidence taken together, it appears quite satisfactorily that whatever passed between plaintiff and. defendant occurred, not only after the foreclosure, but after the sale. It could not possibly have influenced the conduct of plaintiff in regard to the foreclosure. It is urged that the buying of the Tykerson mortgage was a fraud, or is evidence of a fraudulent purpose, but we discover in that nothing inconsistent with the utmost good faith. We are satisfied- that no fraud, in connection with the foreclosure, has been shown.

III. It is further claimed in argument that the sale is void because the sheriff’s return shows the sale of the whole of the 3. joticiai, take indeed, N. % of SE. J-, and his deed conveys the same, when only 54 acres out of the N. -J- of the SE. J-was in fact sold. Perhaps a sufficient answer to this claim is that no relief is asked in the petition upon this ground. But, aside from this, it does not occur to us in what .manner plaintiff is prejudiced by the fact that defendant has satisfied his judgment by the sale of less land in fact than the return and deed show were sold. If defendant thought he was buying all mentioned in the deed, and in fact bought less, this might be a reason why he should have the satisfaction of judgment set aside, and the land re-sold. But, as he concedes the mistake, and asks that the deed may be corrected, so as to convey less land than it describes, it seems to us plaintiff sustains no prejudice thereby, and cannot complain.

It is further claimed that the report of the appraisers shows' that only 40 acres of the N. of SE. J- of section 32, were appraised, and that 14 acres of the 54 in that quarter séction were sold without appraisement. Whatever the fact may be regarding the appraisement of this 14 acres, it constitutes, under the pleadings, no ground of action, nor of defense to defendant’s cross-petition. The record discloses no material error.

AFFIRMED.