Olmstead v. Kellogg , 47 Iowa 460 ( 1877 )

Eothrook, J.

I. The burden of proof was upon the plaintiffs to establish the. alleged fraudulent combination of the bidders at the sale. A careful examination of the abstracts prepared by the parties has led us to the conclusion that in tins the plaintiffs have failed. It is true there is some evidence tending to show that on the evening before the sale there was a meeting of the defendants, who became purchasers of the land, at the office of the county treasurer, and a witness testifies that the sheriff said: “They are fixing up that Olmstead land that is to be sold to-morrow.” The sheriff is not charged with being a party to any conspiracy, and his admission or declaration was not competent evidence. This witness testified to no other tact from which it could be inferred what the defendants were doing in the treasurer’s office. Another witness testifies that he saw the same parties in the treasurer’s office, that they were talking about the land, and some one said Mrs. Olmstead wanted a certain forty, and there was no objection to her having it; that he thought there was a county plat there, and that they might have looked at it, to see what forty it was; and that he did not know that there was any other conversation at that time.

Another witness testified that he saw the defendants, about half an hour before the sale, in the treasurer’s office looking over a plat of some land, and heard them discussing as to which land they would have, and that the general talk was that Lorenzo Kellogg was to bid off all of the land.

Upon the other hand, the five defendants who are charged with the fraudulent combination testified positively that there was no arrangement or agreement made between the purchasers at said1 sale to prevent competition, and that no understanding was had between them as to what particular part of the lands to be sold any particular person was to get, or that they did anything to prevent others from attending and bidding at the sale.

i judicim. móiit:Pomiiae" exfstln’g con-° tracts. II. The mortgage was executed in 1858, and the foreclosure and sale occurred in 1563. The plaintiffs claim that the land should have been appraised according to law. By ^aw m i’01-C0 m 1858, the sale was required to b® made without appraisement, and with the right 0f redemption within one year from the sale. The appraisement law of 1860 was in force when the decree of foreclosure was entered and the sale made.

In the case of Rosier v. Hale et al., 10 Iowa, 470, it was held that the appraisement law of 1860 could not be applied to contracts entered into prior to the date of its taking effect.. The reason of the rule there announced is that an appraisement law which prohibits a sale on final process, unless the. property will bring two-thirds of its appraised value, is such a material change in the terms of an execution law authorizing an unconditional sale, that it impairs the obligation of the contract by burdening it with new conditions and restrictions.

The law as settled in that case was followed, and sales throughout the state were conducted in accord therewith, as long as the appraisement law remained in force.

By sections 3100 and 3102 of the Code no appraisement of real property is required, and the defendant in execution has the right to redeem from the sale within one year, excepting in cases in which he has taken an appeal, or stayed execution on the judgment.

It was held in Holland v. Dickerson, 41 Iowa, 367, that sections 3100 and 3102 of the Code applied to contracts existing at the time of the taking effect of the Code, because a change from an appraisement law to" one authorizing a sale without appraisement did not weaken, lessen or impair the obligation of existing contracts. This case was followed in Babcock v. Gurney, 42 Iowa, 154, and in Fonda v. Clark, 43 Id., 300.

There is a broad distinction between the case of Rosier v. Hale, supra, and the eases last above cited, which will readily be seen. An appraisement law which requires real estate to be sold at two-thirds its value imposes a new condition, rendering the debt more difficult of collection, and thus impairing the obligation of the contract, while a change from an appraisement law to one authorizing a sale without appraisement does not have that effect.

Wc conclude, therefore, that the real estate in controversy in the case at bar was properly sold without appraisement.

2 _. ro_ demption. III. It is next urged that deeds were made to the purchasers of the land immediately after the sale, and that they wore not entitled to deeds, but to certificates of sale. This was but a mere irregularity, and in no way prejudiced the plaintiffs, or prevented them from redeeming the lands from the sale. It does not appear that they offered or attempted to redeem at any time. Their right to redeem was fixed by law, and not by the character of the written instrument delivered by the sheriff to the defendants.

IY. A large amount of evidence was taken as to the actual value of the land at the time of the sale. As the plaintiffs had the right of redemption, and as we have found there was no fraud in the sale, inadequacy of consideration is not a material question, and cannot be made the basis of an action to set aside the sale and deeds after the lapse of so many years. Aside from this, it appears that owing to the financial condition of the country at the time of the sale there was practically no market for lands. The estimate of value by thé witnesses ranges from $1.25 to $10 per acre, and in a proper case made we do not think that the amounts bid by the purchasers would be regarded as grossly inadequate. The lands were sold at about $1.80 per acre.

__. saleen masse, Y. It is claimed that the land was not offered, struck off and sold in separate tracts, and that the sale was held before the hour fixed in the notices of sale. We do not think these irregularities are established by the evidence. If true, as alleged, they would not in the absence of fraud affect the title of the purchaser. Cooley v. Wilson, 42 Iowa, 425, and authorities there cited.

Affirmed.