Ackerman v. Hendricks

Waterman, J. — [108] The main ground of complaint is that the homestead of plaintiffs was not platted by the sheriff before the sale was made as provided in chapter 98, Acts Twenty-seventh General Assembly. That act is in these words: “That section 2979 of the Code be amended by adding thereto the following: * ‘Should the homestead not be platted and recorded at the time levy is made upon real property, in which the homestead is included, the officer having the execution shall give to said owner and the husband or wife, if found within the county, written notice to plat and record the same within ten days after the service thereof, after which time, said officer shall cause said homestead to be platted. and recorded as above and the expense thereof shall be added to the costs in the case.’” After the levy, and before the sale, plantiffs served on the sheriff a written notice that the northwest £ of the quarter section was their homestead; and the officer, in making the sale, offered the other land first in 40-acre tracts. There being no bid made, he then put up and sold the entire 160 acres. It is claimed on the part of defendants that the service of this notice by plaintiffs obviated the necessity of platting and recording by the officer. A similar question, arising under section 1998, Code, 1873, has been passed upon by this court. Smith v. De Kock, 81, Iowa, 535. There are some differences in the two statutes. In that last mentioned, the [109] officer was not required to serve notice on the owners to' plat, and the phraseology of the last clause is that such officer “may cause the homestead to be marked off, platted and recorded,” etc. Under this latter section it was held in the case above cited that a notice given the officer by the owner before the sale, describing the homestead, relieved the latter from making a plat and recording the same; the court saying: “By the notice * * * the selection was, under the law, as definite as a platting would have made it. The law does not require useless things, and certainly the deed will not be set aside for an omission to do this useless thing, if the sale was otherwise regular.” We do not regard the obligation imposed on the officer, so far as platting and recording is concerned, to differ under the two statutes. The use of the word “shall” in the one, and “may” in the other, with relation to the officer’s duty, does not indicate that the one statute is mandatory, and the other only directory. The provision of the Code of 1873 is to be read, not as giving the officer an option to plat, or not, in case he made sale, but, rather, as giving him the right to make a sale if he did so plat. We think the case cited disposes of this question against the contention of appellants. Neither is it valid objection at this time to the sale that after the land, exclusive of the homestead was offered in 40-acre tracts, the 120 acres was not offered for sale together before the homestead was included. Burmeister v. Dewey, 27 Iowa, 468; Hill v. Baker, 32 Iowa, 302. [109] II. Some claim is now made that the wife did not join in the notice to the sheriff. Her name was attached to it but the contention is that she did not sign nor authorize any one to sign for her. This point does not appear to have been raised in the trial court. At any rate it is not sustained by the evidence. Her husband had full authority to act for her in giving the notice. The complaint that the sale was for an inadequate price is not alone [110] available. The evidence shows quite clearly that the land was sold for about half its value but it was sold subject to redemption and mere inadequacy of price is not a sufficient ground for attacking the proceedings. Sheppard v. Messenger, 107 Iowa 717, Griffith v. Harvester Co., 92 Iowa 634 and cases therein cited. The decree of the trial court is aeeirmed.