Willenburg v. Hersey

Waterman, J. [700] This action was originally brough t in the name of H. B. Barbee, as plaintiff. Subsequently, Henry Willenburg having purchased the land of H. B. Barbee, he was substituted as plaintiff. The land in question is the northeast, northwest, 16 — 82—34, in Carroll county. The petition is in the ordinary form for actions of this nature. The defendant answers by general denial and in a cross-petition, claims title to the land, and asks that the same be quieted as against plaintiff. Both parties- claim through one Henry J. Cooley, who obtained title to the forty acres in question October 18, 1882. Plaintiff’s title was derived through a sale under general execution issued on a judgment of a justice of the peace against Cooley, in favor of one Arts, a transcript of which was .filed- in the office -of the clerk of the court March 10, 1879. The sheriff’s deed to H. B. Bar-bee, executed on- said sale, was-dated February Í4,1887, and duly recorded. So much for plaintiff’s title. While the abstract is not very full or clear, it is safe to say as to defendant’s title that she held a mortgage on the land which was executed by «said Henry J. Cooley. This mortgage was duly foreclosed, and the land sold, and conveyed by sheriff’s deed to defendant. This deed Avas d-afed September 8,1890, and filed for record- the following day. It appears that Cooley, on September 29,1889, by quit-claim deed, conveyed his interest in the land to Thomas F. Barbee, the husband of H. B. Barbee. The proceedings in the action for foreclosure are not set [701] .out entire in the record-, but the decree appears in full. The material portions of this decree will be stated, for its construction is important in view of the claims of the respective parties. It is entitled: “Caroline C. Hersey vs. Thomas F. Barbee and Henrietta B. Barbee, His Wife, Henry J. Cooley, Joel V. Cole, George W. Paine and Francis B. Paine, His- Wife.” Among- other recitals are these: “Plaintiff appeared by George W. Paine, her attorney, and defendants Thomas F. Barbee and H. B. Barbee, his wife, appeared by Thomas F. Barbee, attorney; * * * whereupon the plaintiff offers her evidence and proofs, and the same are duly considered by the court, and thereupon the court finds that the allegations of the plaintiff’s p-etition are true, and that there is justly due the plaintiff on the promissory note of Henry J. Cooley, sued on herein, the -sum of one thousand two- hundred and one dollars and forty cents, -and for attorney’s fees, a,s stipulated in the mortgage, the sum of-fifty-two dollars. * * * It is therefore considered and adjudged by the court that the plaintiff, Caroline Hersey, have and recover of the defendant Thom-as F. Barbee the said-sum of one thousand two hundred and one dollars and forty cents, etc. * * * And it is further adjudged and decreed that the liens, interest, and estate of the defendants in -and to the mortgaged premises [describing them] -are inferior and junior to the lien of plaintiff’s mortgage thereon; that the equity of redemption of -each and all of the defendants in and to said real estate be, and the -same are, forever barred and fore, closed. * * '* And this cause is hereby continued as to- the other -defendants for service.” [701] Thomas F. Barbee testified on the trial that his wife told him that she was never served with notice of [702] this foreclosure proceeding. This evidence was objected to, and it was clearly incompetent. He also testifled that his wife did not appear in said action. His testimony on this point is very brief. It is as follows: “She did not appear in that action. She did not answer.” Cross-examination: “I know that she did not answer or appear in that case, because I filed answer myself. i;' * * I know she1 did not appear in that suit, because she told me so.” He also says that he was attorney for his wife in all cases. Nowhere does he assert that he did not, with authority, appear for her. It may be claimed that, by inference, his testimony excludes the idea of an appearance for his wife; but the difficulty about this is that, if presumptions are to be indulged in, they must all be held to support the recitals of the decree. Emigrant Co. v. Fuller, 83 Iowa, 599; Toliver v. Morgan, 75 Iowa, 619; Suiter v. Turner, 10 Iowa, 517; State v. Elgin, 11 Iowa, 216; Campbell v. Ayres, 6 Iowa, 339. As stated in these cases, the presumptions are in favor of the jurisdiction of the district court and the verity of its judgment. If extrinsic evidence can be received to contradict its recitals, such evidence must be clear and positive. The testimony in this case is by no means of that character. It leaves too much to inference. We think the decree must be held good for what it says. This decree, in terms, establishes defendant’s mortgage lien as prior and superior to any claim of said H. B. Barbee. Inasmuch as it was rendered long after the interest of the latter had been acquired by -execution sale under the Arts judgment, it determines in favor of defendant her claim to a paramount title. [702] Plaintiff lays much stress upon the. closing paragraph of the decree, in which it is said that the cause is [703] “continued: as to the other defendants for service,” and .seems- to insist that this -expression is inconsistent with the idea that any defendant other than Thomas F. Barbee was before the court. But there were -other defendants than Barbee and his wife, and, to give all of the recitals of the decree effect we must construe this last clause as referring to those who were not served with notice, and who did not appear*. To meet the argument of appellee’s counsel,. we will say that it makes no difference that Mr-s. Barbee was not served with notice of the action in foreclosure if she appeared in court in that proceeding; and this, the -decree recites, she did. We think -defendant should liav-e had a decree in her favor on her cross-bill. If she so elects, she may have a decree in this court. For the present, the entry here will be simp-ly that the decree of the district court is reversed.