Rush v. Mitchell

32 N.W. 367, 71 Iowa 333

• Court: Supreme Court of Iowa
• Decided: March 12, 1887
• Status: Published

Opinion

Beck, J.

1. Execution Sale: irregular redemption: assignment of certificate: sheriff’s deed. I. The parties to this suit claim the land in controversy under conflicting titles. Plaintiffs claim as the w^ow and heirs of Henry Rush, who they allege acflaired title under a sheriff’s deed executed and recorded April 18, 1882. It appears that the title thus acquired is good, unless it be defeated by defendant’s title, which is based upon the following facts: The sheriff’s deed to Rush was not executed until thirty days after the expiration of the full time for redemption from the sheriff’s sale. April 17, 1882, Hathway, the defendant in the judgment upon which the land was sold, conveyed it by quitclaim to Rogers. The deed was recorded April 18,1882. On the seventeenth day of April, 1882, defendant Rogers conveyed to defendant Louisa Mitchell the land in question by deed of warranty. On the same day she executed a mortgage to Rogers to secure the payment of the purchase money, $900. The deed and mortgage -were recorded on the eighteenth of April, 1882. Defendants insist that their title is paramount to plaintiffs’, and base this position on two grounds, which we will proceed to consider.

II. The sheriff’s deed was made to Rush upon a redemption made by him under a junior lien, being a decree of foreclosure of a junior mortgage. It is claimed that the evideuce shows that he did not own this decree, having before assigned it. Hpon these facts it is insisted that his rederap-, tion was void, and the sheriff’s deed to him as a redemptioner .is void. It is difficult to discover a ground upon which the' defendant in execution, Hathway, or his grantee, can base an objection to Rush’s redemption. It is not claimed or shown that Hathway was prejudiced by the redemption of Rush. If he be not prejudiced, he and his grantee ought not to object to the redemption. . But, without further inquiry into the right of the defendants to show that Rush had no right to redeem, and refraining from announcing any conclusions upon the question, we are clear in the opinion that, if it be held that he had no right as the owner of the judgment to redeem, his sheriff’s deed is nevertheless valid. Before it was made, the certificate issued by the sheriff, upon the sale under the senior judgment was assigned to Rush. If he was not a redemptioner as the holder of the junior judgment, he was, by virtue of the assignment, the holder of the certificate of sale, and as such was entitled to the sheriff’s deed, under Code, § 3101. This precise point is decided in Wilson v. Gonlclin, 22 Iowa, 152. We conclude, therefore, that the sheriff’s deed to Rush is a valid instrument.

2.. -: SHERIFF'S DEED MADE TOO LATE: INTERVENING PURCHASER: good faith: evidence: burden of proof. III. Defendants insist that the sheriff’s deed to Rush does not defeat the title of defendant Mitchell, for the reason that she acquired it without notice of adverse rights under the sale and deed upon which plaintiffs base their title. Before considering this point, it may be remarked that, as Rogers acquired the •J , it , , laud by a quitclaim deed, and paid nothing for it, which is shown by his own evidence, he-was not a good faith purchaser, and is chargeable with notice of the rights of Rush. The evidence clearly shows that Rogers had also actual notice thereof. Mitchell, therefore, is not protected as a purchaser from one without notice. We shall soon see that, as she has failed to show that she was a bona fide purchaser without notice, she cannot hold the land against plaintiffs’ title. Code, § 3125, provides that, for twenty days after the expiration of the time for redemption- from a’ sale of land upon execution, the proceedings impart constructive notice of the purchase. But under this section only a bona fide purchaser without notice is protected. Harrison v. Kramer, 3 Iowa, 562. One who is not a bona fide purchaser is chargeable with notice. Is Mitchell to be regarded as a bona fide purchaser? The petition alleges that the purchase was fraudulently made for the purpose of defeating the title of Bush. Her good faith in the jnirchase was thus put in issue. The evidence clearly shows that Bogers had full notice of the rights of Bush, and that he acquired the quitclaim deed for the fraudulent purpose of defeating. Bush. Mitchell, holding under a fraudulent purchaser, must assume the burden of proving that she purchased in good faith for a valuable consideration. Throckmorton v. Rider, 42 Iowa, 84 ; Sillyman v. King, 36 Id., 207 ; Falconbury v. McIlravy, Id., 488.

IY. The recitals of her deed, as to the payment of the consideration, will not show, upon the issue in this case, that she paid value for the land. Hodgon v. Green, 56 Iowa, 733 ; Falconbury v. McIlravy and Sillyman v. King, supra.

Y. The execution of notes, and a mortgage securing them, if the notes, though negotiable, remained in the hands of Bogers, would not be regarded as the payment of the consideration for the land. Kitteridge v. Chapman, 36 Iowa, 348. It is shown that the notes and mortgage were executed by Mitchell for the land, but it is not shown that the notes passed out of the hands of Bogers. Without such showing, she cannot claim that she is a purchaser for value. It thus appears that Mitchell has failed to establish that she is a good-faith purchaser for value. She is therefore chargeable with notice of the rights and equities of Bush under the sheriff’s deed.

We are brought to the conclusion that the decree of the district court quieting the title of plaintiffs is correct. It is therefore Affirmed.