Gray v. Dye , 39 Iowa 360 ( 1874 )

Day, J.

The sole question presented for our consideration is, does the answer contain denials and averments sufficient to put the plaintiff upon the proof of the allegations of the petition, or is the plaintiff, notwithstanding the answer, entitled to the relief asked without proof. The answer, it will be observed, admits that Ellen A. Dye purchased the property in controversy, through her agent, Henry P. Elliott, who furnished the money, and to whom the certificate of purchase was assigned as collateral security, and ‘ that the excess of the purchase price, after satisfying plaintiff’s execution, was paid over to the defendant in execution, Wm. McE. Dye.

All the other material allegations of the petition are denied. Plaintiff claims that he is entitled to the relief asked upon the following grounds:

1. Fraud in the purchaser or purchasers at the sale.

2. Failure to pay over to the sheriff the purchase money when demanded.

But both the fraud and the demand for the purchase money are specifically denied. And it is admitted that the sale occurred only as set forth in the officer’s return, which shows payment of the entire price to the deputy sheriff. If .a stranger had purchased the land in good faith, through an agent who furnished the money, and took an assignment of the certificate of purchase as collateral security, surely such person would not be held responsible for the disposition made of the money by the sheriff. And, if the wife of the execution defendant purchased under like circumstances, in good faith, no reason can be given why she is not entitled to equal protection.

It may be that there was a fraudulent combination between the defendants, as alleged, to impair plaintiff’s security. But such fraudulent combination is denied. Upon the other hand, it may be that the purchaser and her agent acted in good faith, to prevent the sale of the premises for an inadequate sum, as it appears from the petition that plaintiff refused to bid upon the land in parcels.

The facts admitted do not, as matter of law, establish a fraudulent purpose. The answer tenders an issue which it was the right of defendants to have tried, and determined as a fact.

In sustaining the demurrer, and rendering judgment against defendants without proof, the court erred.

Reversed.