Southard v. Perry

Dillon, J. i. bstoppes: fomnosure I. As to the suit to set cmcte tne decree. Respecting both eases, it may be remarked that they chiefly turn upon the evidence, which is quite lengthy. "Where this is the case, we have adopted the -practice, unless the cause is peculiar or unusually important, to state our conclusions of fact upon the testimony, without in cumbering the reports with a lengthy review and discussion of it. Upon a careful consideration of the record, it is our opinion: 1. That the plaintiffs have failed to show that the defendants, in making service upon the husband by copy of the original notice, left with his wife in Appanoose county, and, in taking their decree of foreclosure, meditated or practiced a frmd upon him. 2. Southard has failed clearly to establish that he was a resident of California, or that he had ever changed his legal residence or domicile from this State. His long absence, it is true, favors the notion that he has taken up his residence in California. . But, against this is the fact that he avowedly left for a temporary purpose; that his family remained here; that he corresponded with them, and gave, from time to time, his reasons for not then returning; that he retained his property in Iowa, &c. Besides, in his own deposition, he states no facts, such as exercising the right to vote; &c., showing that-he was or regarded himself as being a citizen of California, or permanently located there. Defendants [492] had to procure service by publication, making affidavit that he could not be served in the State, or else make service in the manner they did, viz., by copy left with his wife, as a member of his family, regarding his absence as temporary, and his residence to be, in law, the residence of his family. The plaintiff’s complaint is, in substance, this : That defendants ought to have published notice to him, instead of serving it upon his wife. Knowing what they did respecting the cause and purpose of his going, and of his expected return, and of the residence of his wife and family, we think defendants chose the proper course; at least, if they had made service by publication instead of upon his wife, plaintiff would have had more solid grounds of complaint than he now has. Besides, the plaintiff’s own evidence shows that his wife'wrote him that suit had been commenced and notice served upon her. But, aside from these considerations, we are of opinion, upon the the evidence (and this is, of itself, sufficient to defeat the relief asked),— 3. That the plaintiff, by authorizing his wife, after the decree, and when he knew how service had been made, to receive the surplus money arising from the sale, and by retaining such money for nearly a year after the receipt thereof, and not offering to restore it until this suit was commenced, has ratified the decree. Again, neither in this case nor in the other has the plaintiff shown, either that the property was susceptible of an advantageous division, or that it failed to bring its value. There is not a particle of evidence upon either of these important points. Had this been established, plaintiff’s application for relief would have been much strengthened. It is true that the evidence shows that he could have successfully defended the foreclosure suit on the ground of usury; but, if dissatisfied with the decree or sale, he [493] ought not to have received or authorized the reception of the money from the sheriff. He had knowledge of no material fact in relation to the mode of service and the deqree when he brought this suit, that he did not know more than- a year previous, when he expressly and deliberately empowered his agent and wife to collect and receive the surplus money arising from the sale of the property, and meanwhile defendants have acted and acquired rights on the faith of their purchase. 2. BxEODTiorr: saiem parcels. II. As to the suit to set aside the sheriff’s sale and deed. We do not think a fair construction of the writ in this case necessarily required the sheriff to sell the whole lot. It commanded him to sell m conformity with ^ statute, and the sheriff was not prohibited, by the writ, from making a division of the property, if this were practicable, nor from selling in parcel and only so much as might be necessary to satisfy the decree and costs. Treiber v. Shafer, 18 Iowa, 29, and authorities cited on this point. If it had been shown, by evidence, that the lot was susceptible of division ; that it was sold at a great sacrifice; that the sheriff regarded himself as precluded, by the writ, from selling* in parcels, and as bound, by the writ, to sell the whole, these circumstances would materially have corroborated the plaintiff’s equity to have the sale set aside. In addition to this the plaintiff’s receipt of the surplus purchase-money, and its retention, as above stated, together with the delay to question the sale and restore the money received, are strong circumstances against the right to relief, admitting that the form of the writ was irregular. We cannot presume that a lot of. 33 feet front is susceptible of division, so that a sale of the whole should be set aside, without evidence showing it to have been advantageously divisible, or showing that it was sold [494] at a price less than its real value. As we reach the conclusion that the decrees below must be affirmed, without considering the depositions of the defendants themselves, it is unnecessary to decide whether the court ought to have excluded them on the grounds urged by the appellants. Affirmed.