Holtzinger v. Edwards , 51 Iowa 383 ( 1879 )

Seevers, J.

1. nrmciAL sale: satisfactionor juag. menis prior liens. — The rule is that purchasers at execution sales must take care and see to it the debtor has a title or interest in the property sold. Dean v. Morris, 4 G. Greene, 312: Downard v. Crenshaw, 49 Iowa, 296. If there has been no negligence in this respect, and the debtor had neither title nor interest, relief has been granted in equity. Ritter v. Henshaw, 7 Iowa, 97, and cases cited. It is provided by statute that the sale may be set aside “where the judgment on which the execution issued was not a lien” on the pnrperty sold. Code, § 3090.

The facts in the case at bar are that the defendant was the owner of the legal title at the time the judgment was rendered and sale made. The judgments were liens thereon. It is clear, therefore, the case is not brought within the statute.

The appellants, however, insist the rule is that the sale will be set aside when the purchaser does not obtain anything of value, and, in support of this proposition, cite Chambers v. Cochran et al., 18 Iowa, 159; Preston v. Harrison, 9 Ind., 1; and Cowles, Ex’r, v. Bacon, 21 Conn., 451.

These cases only go to the extent of holding that the sale will be set aside if the-debtor had no title or interest. The question of the debtor having the legal title or'an apparent interest, or whether such interest was probably valuable or otherwise, was not considered. By their purchase the plaintiffs obtained all the right, title and interest of the defendant, including his right of redemption. Defendant had a fee simple title. It is true it had been sold under executions based on judgments which had priority to the plaintiffs’. The property was also incumbered by other liens which were prior to the plaintiffs’; as to some of them they had actual knowledge, and constructive notice of all. Because of their failure to pay off the prior liens the plaintiffs have obtained nothing by their purchase. But they acted on their own judgment, and if they have not realized anything it is their own fault, or mistake, as to the value of the property, or extent of the prior liens, or of their ability to pay off and discharge such liens. Having taken the chances, they must, under the circumstances, abide the reshit.

Affirmed.