Edwards & Anderson v. Olin , 121 Iowa 143 ( 1903 )

McOlatn, J.

Errors are assigned on the admission of evidence, but the court seems to have allowed such evidence'to be introduced subject to objection made, and it does not appear that any evidence which was subject to proper objection was considered by the court in reaching its conclusion. The findings are supported by ample evidence, without considering that which was objected to. The case seems to have been practically treated as in equity, without objection on the part of appellant, and, while appellant no doubt might have insisted on rulings, he did not do so, and cannot have a reversal, unless it appears that the evidence proper to be considered does not support the findings.

t. execution cedeasUbond: notice of. 2. privity of liens: execu-tionsale. That the conveyance from E. A. Olin to G. A. Olin was executed and accepted for the purpose of defrauding creditors is not, to our minds, doubtful under the evidence. This question was before the court in the case of Clearfield Bank against these same defendants, 112 Iowa, 476,- and that conclusion was reached. As to G. A. Olin’s claim of title to the property by reason of purchase of the certificate of sheriff’s sale from the Clearfield Bank, it is urged that the sale was made after the filing of the super-sedeas bond, and therefore was invalid. The sale was by the sheriff of Ringgold county on an execution issued by the clerk of Taylor county. The supersedeas bond was fiied and approved on the 20th of January, 1898, by the clerk of the district court of Taylor county, and he testifies that he immediately wrote the clerk of Ringgold county recalling the execution. The sale by the sheriff of Ring-gold county was on the day following. A careful examination of the abstract (which, by the way, is not accompanied by any index, as required by the statutes and rules of this court on the subject) fails to reveal any evidence that the recall of the execution was indicated.in any way to the sheriff of Ringgold county before the sale. Our understanding of the statute (McOlain’s Code, sections 4128-4131) is that the supersedeas bond becomes effectual to prevent further action 0£ ^¡jie sjieriff under an execution ali*eady in his hands only when the countermand from the clerk reaches the sheriff, and that a sale by the sheriff before the receipt of this countermand is valid. We are inclined, therefore, to the view that the Clearfield Rank bad a valid certificate of purchase, which it could transfer to G. A. Olin, and that by tire sheriff’s deed to G. A. Olin he acquired the right which the Clearfield Bank had. But, as he was already the owner of the fee title by theconvey-anee from E. A. Olin, his purchase of the certaficate simply extinguished the claim of the Clearfield Bank. G. A. Olin is therefore entitled to a lien on the property prior to the claim of plaintiffs to the extent of the amount paid. The consideration recited in the deed ie $1,220.75, which represents the amount for which the property was sold to the Clearfield Bank, and for which the sheriff issued a deed. Counsel in argument assume that the amount paid by G. A. Olin to the bank was $1,440. Possibly this may be- true, as the bank was entitled to interest in the event G. A. Olin should redeem. But w'e do not find any evidence in the record as to the amount actually paid.

Conceding, however, that G. A. Olin is entitled to priority to tbe extent of even $1,440, it appears that the property in controversy is of considerably greater value, and probably of sufficiently greater value to satisfy plaintiffs’ claim. It is, indeed, suggested in argument that tbe premises were covered by a mortgage of $1,200, but there is no competent evidence as to any such mortgage, nor does the record suggest any information with reference thereto which will enable us to take it into account in determining whether there is a surplus for the satisfaction of plaintiffs’ claim. Our conclusion is that the lower court was in error in holding the assignment of the Clear-field Bank’s certificate of sale to G. A. Olin to be in fraud of plaintiffs’ claims, and the decree of the lower court is reversed, and the c-ase is remanded, with direction that the property in controversy be sold, and, after deducting from the proceeds of the sale the amount paid by G. A. Olin to the Clearfield Bank in satisfaction of the certificate of sale held by it, not exceeding the amount which it would have been necessary to pay the bank in redemption from such sale, the balance be applied, so far as necessary, to the satisfaction of plaintiffs’ judgment. — Reversed.