
    Butterfield v. Walsh.
    1. Notice: purchaser at judicial sale. When the plaintiff in execution becomes the purchaser at the sheriff’s sale, he is protected against equities in other parties, unless such equities are so strong and persuasive as to prevent the application of the rule which indisputably obtains as to third persons or strangers to the suit; and if these are relied on they must be alleged and proved.
    2. Judicial sales aeter death op execution. The sale of property under an execution after the expiration of seventy days from the date thereof is not invalid if the levy was made before the expiration of that time.
    
      Appeal from, Dubuque District Court
    
    Thursday, June 28.
    Right. — Both parties claim under Owen' McLaughlin. Plaintiff’s title is this: Patrick Quigley obtained a sheriff’s deed in July, 1840, under a judgment and execution in favor of Curran against McLaughlin; and in April, 1862, plaintiff obtained a sheriff’s deed under a judgment and execution in his favor against said Quigley. Defendant is the residuary legatee of John Walsh, and shows that the property was sold to said John in October, 1841, under a judgment in favor of the Walshes, rendered subsequent to that under which plaintiff claims against said McLaughlin. He also claims that Quigley purchased under the Curran judgment as the agent of the Walshes; that they advanced the amount bid; that he never had any right to the prop-, erty; never exercised any acts of ownership over the same, but held it purely and simply in trust for the real owners, the present plaintiff and John Walsh. This latter claim is set up as an equitable, defense. The testimony tends to show its truth, and upon this theory the court below found for the defendant, and the plaintiff appeals.
    
      H. A. Wiltse and D. W. Poor for the appellant.
    
      Monroe & Deary for the appellee.
   Wright, J.

In the disposition of this case we shall assume that Quigley bought under the Curran judgment as the agent of Walsh, and that as between them he held it in trust for Walsh. The testimony, we concede, is not very conclusive, but this is its tendency, and we shall so treat it. As plaintiff claims under the senior judgment, against one who is the common source of title, the material inquiry is, whether he had notice of defendant’s equities, or whether such equitable title can defeat an apparently regular legal title.

Defendant had no actual possession of the property; nor was there any other than constructive possession in. any one. The record title, at the time of plaintiff’s purchase, was in Quigley, and we find nothing to warrant the conclusion that at this time he had any knowledge or notice of defendant’s equity. The case is distinguished from Norton, Jewett & Busby v. Williams, 9 Iowa, 530, and those like it, where the purchaser had notice of a deed before purchase, outstanding at the time. of the judgment, but then unrecorded. For in such cases the judgment was but a lien, the creditor had parted with no right, but before parting with his purchase-money had full notice of the outstanding title. When a third person purchases, without notice of the outstanding equity, there is no doubt as to the validity of his title. The doubt only arises, under all the cases, when the plaintiff in execution himself becomes the purchaser. This question was very fully discussed in the cases of Parker v. Pierce, 16 Iowa, 227; Vannice v. Bergen, Id., 555; Evans v. McGlasson, 18 Id. And in substance, these cases hold, taking the most favorable view for appellee, that at law or in equity, the plaintiff in execution, when a purchaser, is protected,' unless the equities of the adverse claimant are so strong and persuasive as to prevent the application of the rule which indisputably obtains as to third persons or strangers to the suit; and that if those are relied upon they must be alleged and proved. See Sanford v. McLean, 3 Paige, 117; Bartlett v. Gale, 4 Id., 503. The question then is, whether equities of this nature are shown in this case on the part of appellee.

It will be remembered that the legal title was in Quigley, at the time plaintiff obtained his judgment, as also at the time of the sale. Plaintiff had no actual notice of defendant’s equity. The property was apparently subject to the payment of the judgment. There was nothing, in the way of possession or otherwise, to put the purchaser upon inquiry. Why then is plaintiff not protected as fully as any ordinary puchaser? Defendant had not even a deed from Quigley. If lie bad, and failed to record it, and plaintiff bad no notice of it, then, in tbe absence of equities, sucb as we bave referred to, it would have bad no validity against bim, and bis title would prevail. And certainly defendant can occupy no better position, bolding an equitable title, without any paper evidence of it, and without notice thereof to plaintiff.

Now the case of Vannice v. Bergen, 16 Iowa, 555, is tbe only case in this State, which can be claimed to be at all analogous to this. And yet there tbe debt of tbe judgment creditor and purchaser, was contracted, while tbe adverse claimant’s lien upon tbe common debtor’s property was clear and indisputable. This lien continued to tbe time of judgment. Tbe lien bolder after this bought tbe land of the. mortgagor, tbe common debtor, paying therefor something beyond tbe amount due on tbe mortgage. Tbe mortgagee’s interest after this, was sold under tbe .judgment and tbe mortgagee filed a bill to set aside tbe entry of satisfaction ; to revive tbe mortgage and to have, tbe lien thereof declared paramount to that of tbe •judgment. Bergen, tbe debtor and mortgagor, was insolvent at tbe time, be sold to the mortgagee. His ability to pay was as great after as before, having no property then or afterwards from which the judgment could, have been made. Nothing was, therefore, lost to tbe creditor by tbe mortgagee’s act in purchasing tbe land and satisfying bis mortgage. And these facts were shown. Nothing of this kind appears in this casé. As to tbe condition of Quig'ley’s property or bis ability to pay, tbe record is silent. Tbe case, then, is simply this: that plaintiff bought an apparently good’ legal title, without notice actual or'constructive of tbe defendant’s outstanding equities; and there is nothing in tbe circumstances to show that be should ‘‘not be protected as fully and to tbe same extent as any ordinary purchaser for value. So bolding, bis title must prevail and the. judgment below be reversed, unless ■tbe second and only remaining point can avail appellee.

It seems that the execution against Quigley was issued December 27, 1861; that on tbe 6th of March, 1862, tbe sheriff made bis levy and advertised the property for sale, and sold it on the 15th of April. All the proceedings were under this execution, and tbe objection is that as the sale was made more than seventy days from tbe test of tbe writ, it was void and plaintiff took no title.

The law is that tbe officer shall indorse on tbe execution the' day and hour of its receipt, and “ make a sufficient return thereof, together with tbe money collected, on or before the seventieth day from such delivery.” Bev., §§ 8255, 3257. When tbe sheriff received tbe writ in this case does, not appear, but we shall assume that it was tbe day of its date. Is tbe sale void, therefore, because made after tbe seventieth day, tbe levy and advertisement being before that time? •

In Stein v. Chambless, 18 Iowa, 474, it was said to have been long and'often settled, that if tbe officer levied before tbe expiration of tbe execution, be maycomplete the sale as well after as before tbe return day of tbe writ. That case was under the Revision, and, therefore, like this. A,nd tbe doctrine there stated is clearly sustained by the authorities cited. Phillips v. Dana, 3 Scam., 558; Wood v. Colvin, 5 Hill, 231; Wheaton v. Sexton, 4 Wheat., 503. In the last case, Justice Johnson; in delivering tbe opinion, says: “ Tbe court can only express its surprise that any doubt could be entertained. The purchaser depends on tbe judgment, tbe levy and tbe deed. All other questions are between tbe parties to tbe judgment and the marshal.” And see, further, Averill v. Wilson, 4 Barb., 180; Cox v. Joiner, 4 Bibb, 94; Clerk v. Withers, 2 Ld. Raym., 1075; Jackson v. Rosevelt, 13 John., 97; Cavender v. Heirs of Smith, 1 Iowa, 806, and cases there cited. This being the rule, it follows that the objection cannot avail; and it also follows that plaintiff’s title is paramount to that of defendant; that there was error in- the action of the court below; that said judgment must be reversed, and the proceedings remanded for judgment in accordance with this opinion.

Eeversed.  