Vacating and Modifying Judgments — Decrees in Equity. 314 Motions to set aside. The law contem- not fraud in the sense of Revision, section 3499, plates that motions to set aside judgments shall be made at the term next succeeding the one at which the entry was made, and while under some circumstances it may be made afterward, the policy of the law as well as a due regard for the rights of the parties interested dictate that such applications should be made at an early day. Keeney v. Lyon, 21 Iowa, 277. 315. Notice to parties of motion. All parties interested should be notified of the filing of a motion to set aside a judgment rendered at a prior term, and it is error to sustain such a motion in the absence of such notice. Ibid. 316. Unauthorized appearance. A defendant who has been represented by an unauthorized attorney, has the right to be relieved against the judgment by a direct action in equity to set it aside; but such action must be brought promptly after a knowledge of its rendition has come home to the defendant. Bryant v. Wil liams, 21 Iowa, 329. 317. A judgment will not be vacated on the ground that the attorneys appearing for the defendant were not authorized so to do, when the fact of such authority is not fully negatived, but left in doubt under the testimony, and there are no allegations in the petition to vacate, show. ing a defense to the action upon which the judgment is founded. county, 29 Iowa, 256. Russell v. Pottawottamie 317. Vacation of after motion for new trial. A judgment may be vacated or modified on the ground of fraud in obtaining it, although a motion for new trial, based upon other grounds, was made and overruled. Reno v. Teagarden, 24 Iowa, 144. 318. Vacation of for fraud: statute construed. A false statement in a pleading, which the other party had a full opportunity to deny, is 5. For erroneous proceedings against an infant, married woman, or person of unsound mind, when the condition of such defendant does not appear in the record, nor the errors in the proceedings. 6. For the death of one of the parties before the judgment in the action. 7. For unavoidable casualty or misfortune preventing the party from prosecuting or defending. 8. For error in a judgment shown by an infant within twelve months after arriving at full age. In Bennett v. East, 7 Ind. 174, it was held that infants, on arriving at age, should proceed by way of review for error in judgments upon which their lands had been sold. It has been held that where a party prosecutes a proceeding to review a judgment, he cannot appeal from the judgment reviewed. The appeal must be from the judgment in the proceedings for review. Ind. Dig. 122, § 42; 7 Ind. 25. Vol. 2.-83 subdivision 4. Miller v. Albaugh, 24 Iowa, 128. 319. Prior adjudication of supreme court. Where, upon a judgment of the district court, the supreme court held that it was binding, and that it could not be collaterally impeached: held, that said adjudication upon said judgment was conclusive, and it cannot be set aside in an independent suit for that purpose. Moore v. Parker, 25 Iowa, 355. 320. A judgment of the district court will not be set aside as fraudulent upon facts which, though showing a motive to fraud, are not in themselves sufficient to establish it. The fraud must be proven, and will not be presumed or inferred. Moore v. Parker, 25 Iowa, 355. 321. For casualty or misfortune: statute construed. The loss of a note is not an unavoidable casualty or misfortune in the sense of Revision, section 3499, subdivision 7, as it does not prevent a party from defending. Miller v. Aibaugh, 24 Iowa, 128. 322. Where a party was severely ill and so continued during the term of court at which judgment by default was rendered against him and he shows a valid defense to the action, held, that under Revision, section 3499, he is entitled to the vacation of the judgment. Luscomb v. Maloy, 26 Iowa, 444. 323. Within what time. An application to vacate a judgment, where the court had jurisdiction, must be made within one year from the rendition of the same. Hunt & Kendall v. Stevens & Alverson, 26 Iowa, 399. X. DECREES IN EQUITY. 324. Name of parties need not be mentioned in decree. Where the parties are shown in the title of a cause in equity it is not necessary to SEC. 3500. The proceedings to correct mistakes, or omission of the clerk, or irregularity in obtaining a judgment or order shall be, by motion, served on the adverse party, or on his attorney in the action, and within one year, and when made to vacate a judgment because of irregularity in obtaining it, must be made on the second day of the succeeding term. SEC. 3501. The proceedings to obtain the benefit of subdivisions 4, 5, 6, 7 and 8, of section 3499, shall be by petition, verified by affidavit setting forth the judgment or order, the facts or errors constituting a cause to vacate or modify it, and the facts constituting a defense to the action if the party applying was a defendant, and such proceedings must be commenced within one year after the judgment or order was made, unless the party entitled thereto be an infant, married woman or person of unsound mind, and then within one year from the removal of such disability. Decrees in Equity - Validity and Effect. repeat the names of the parties in the body of the decree. Campbell v. Ayers, 6 Iowa, 339. 325. Date. When the term of court at which a decree was rendered is mentioned in the transcript of a cause in equity, the date of the rendition of the decree need not be stated in the body of the decree, unless some act is to be done in a definite period from the date, or the rendition of the decree; and then, if no other day is named, such act takes date from the last day of the term. Ibid. 326. Final or interlocutory. Whether a decree be an interlocutory or final one must appear from its nature. It need not be called by a name. Ibid. 327. Presumption: default. If a decree does not state that it was rendered upon a default it is presumed to be upon appearance. Ibid. 328. facts. When a decree does not set out the facts found, upon which it was rendered on appeal, the presumption in favor of the regularity of courts superior and of general jurisdiction, will assume that sufficient facts were shown to warrant the decree, unless the contrary be made to appear from the record, or from the testimony. Ibid. 329. It is not necessary to set out the facts found. Ibid. 330. All the papers of a cause constitute the record in a chancery case, and the decree assumes them and their contents. And so of the evidence when it is in writing. Ibid. 331. Decree canceling deed. Where a decree in equity, canceling a deed, defines the particulars of date, etc., and names more points of description than the petition, the decree is not incongruous. If the decree clearly identifies the deed decreed to be canceled, minor points of misdescription may be disregarded. Ibid. 332. A decree should not give more or greater relief than is claimed in the petition. Cooper et al. v. Frederick, 4 G. Gr. 403. 333. Relief pro tanto. Where a complaint in chancery is entitled to any relief, under the case made in his bill, it should be granted pro tanto. Walker v. Ayres, admr., and Ryder, 1 Iowa, 449. 334. Must be predicated on pleadings. A decree must be predicated upon the allegations in the pleadings. Simplot v. Simplot, 14 Iowa, 449. 335. Prayer of petition or answer. Relief will not be granted in the decree which was not asked in the petition. Byam v. Cook, 21 Iowa, 392. 336. The court will not decree to the defendant affirmative relief when none is asked in his answer. Burrows & Prettyman v. Cook & Sargent et al., 17 Iowa, 436. 337. Enrollment of decree. A decree in chancery is constructively taken to be enrolled when the court by which it is rendered has finally adjourned for the term. McGregor v. Gardiner, 16 Iowa, 538. XI. VALIDITY AND EFFECT. a. Validity and force. 338. Presumption in favor of decree. Every presumption obtains in favor of the validity of a decree rendered by a court of general jurisdiction, unless such presumption is rebutted by what appears affirmatively on the face of the record. Prince v. Griffin, 16 Iowa, 552. 339. acceptance of service by attorneys. A decree of foreclosure rendered in a cause upon an acknowledgment of service of original notice by attorneys, held not to be valid upon the face of a record which was silent as to their authority to accept such service. Ibid. That even if the deed 340. Effect of decree on fraudulent deed Where, by a suit in equity, a deed was decreed to be canceled and held for naught on the ground that it was obtained by fraud and duress, it was held, that the deed was void ab initio, and that the decree did not make the deed void, but only declared it so. was not invalid and inoperative ab initio, as to all persons, but only from the rendition of the decree, yet as to the party who obtained the deed by duress and fraud the decree would have a retrospective effect, and the deed was absolutely void as to him. Arnold v. Grimes & Chapman, 2 Iowa, 1. 341. When decree will operate as a conveyance. A decree cannot operate as a conveyance of land outside the jurisdiction, but when the court has jurisdiction of the parties, it may decree a conveyance of such lands and carry such decree into effect, in the manner in which other decrees are enforced. Such decree will be regarded by other courts as conclusive until reversed or annulled. MacGregor v. MacGregor et al., 9 Iowa, 65. Time of Entry - Kind, and requisites of Reversing and vacating Decrees. 342. When settlement and decree are conclusive. A settlement between a mortgagor and mortgagee, and a decree thereon finding and establishing the sum due from one to the other, are conclusive, unless it is made to appear that such settlement and decree were obtained by fraud. Clarke v. Bancroft, Beaver & Co., 13 Iowa, 321. 343. Construction. The effect of a decree rendered by a court of another State upon the rights of the parties considered and determined. McGregor v. McGregor, 21 Iowa, 441. 344. Decree for interest due without decree for principal. The petition in a former suit prayed for a decree to foreclose a mortgage given to secure a note, for interest due and unpaid. Judgment of foreclosure was rendered as prayed. The decree was silent as to whether the whole mortgage debt is due, but contained this provision: "This decree and judgment is not in any manner to prevent or bar the institution of further proceedings upon said note and mortgage to recover the interest that may accrue on the same, or the principal, provided the same are not paid at maturity. This judgment and decree, relating only to the interest mentioned, which has accrued on said note secured by said mortgage." Held, 1, That the former decree impairs no right as to which it is silent. 2. That the right to foreclose for the principal sum before the note fell due was not adjudicated in said decree, and consequently this action is not barred thereby. Pope v. Durant, 26 Iowa, 233. b. Time of entry; kind; and requisites of. 345. When default cannot be entered as to any pending demurrer of one. When there is a demurrer of one of several defendants in chancery for the want of equity, and going to the merits of the whole bill, and undisposed of, a final decree cannot be entered up against the others who are in default for plea, answer or demurrer. Jenkin et al. v. McCully, Mor. 447. 346. Pro confesso. If the defendant makes default, a decree pro confesso may be rendered against him without evidence in support of the bill. Humphreys v. Darlington, 3 G. Gr. 588. See, further, title DEFAULT. 347. When a bill is taken as confessed all distinct and positive allegations are to be taken as true; but if the allegations are indefinite, or the demand of the plaintiff is in its nature uncertain, the certainty requisite to a proper decree must be furnished by the proof. Harrison v. Kramer et al., 3 Iowa, 543. 348. On usurious contract. A decree ordering the reconveyance of land held under an absolute deed as security for the payment of a note tainted with usury should require, as a condition precedent to such reconveyance, a payment of the sum actually found to be due to the holder of the note. Vennum v. Babcock, 13 Iowa, 194. 349. Final decree. No final decree for the payment of money should be entered against a party in a chancery suit, before the amount due from him to his adversary is ascertained and determined by the court. Anderson et ux. v. Reed et al., 11 Iowa, 177. 350. Execution of decree. In a proper case a court of equity may issue a proper process to enforce the execution of a decree ordering the surrender of lands. White v. Hampton, 13 Iowa, 259. c. Reversing and vacating decrees. 351. Decree pending demurrer. Where a respondent was required by rule, to plead, answer or demur within thirty days, and within that time submitted a demurrer to the decision of the court, and having rested his case upon such decision, without filing an affidavit of merits, the decree rendered before the expiration of said thirty days will not be disturbed. Knetzer v. Bradstreet, 3 G. Gr. 487. 352. Right of co-defendant. When a decree by default charges an indebtedness upon land in which a co-defendant not defaulted is interested, such co-defendant may show that the decree was unauthorized. Broghill v. Lash, 3 G. Gr. 357. I 353. When valid in part, and void in part. Where a decree, in part, requires that to be done which the court had no power to decree, that portion of the decree beyond the authority of the court to order becomes. mere surplusage and nugatory, and forms no ground for the reversal of the decree, and especially so, where it would not open the cause to a rehearing. Campbell v. Ayers, 6 Iowa, 339. 354. When for unauthorized amount. Where a petition in equity prayed judgment for the amount then due, and no supplemental petition or further prayer was filed, it was held that the court erred in rendering a judgment. for a sum which included installments which Reversing and vacating Decrees - Generally. became due after the commencement of the suit. Blake v. Blake, 13 Iowa, 40. 355. Decree by consent. That the report of a master in chancery was confirmed by the court, the attorneys of the appellant being present and making no objection, is not a sufficient showing that the decree was entered by consent of parties. Hershee & Huber v. Hershey et al., 15 Iowa, 185. 356. After dismissal. A decree rendered against a defendant, after the action against him was dismissed on plaintiff's motion, should be reversed. Brooks v. Cutler et al., 18 Iowa, 433. 357. Entry in vacation. A decree cannot be entered against parties in vacation without their consent. McClure et al. v. Owens et al., 21 Iowa, 133. 358. A decree against persons who are not parties to the proceedings in which it is rendered is erroneous. Ibid. 359. General rule. A final decree cannot be changed, altered or reversed, except upon application by bill or petition for cause, to the court which rendered the same, or to an appellate court. Deeds v. Deeds, 1 G. Gr. 394. 360. Bill to vacate judgment. A bill to vacate a judgment of partition for fraud may be in the nature of a bill of review, and may be demurred to for want of equity. De Louis et al. v. Week et al., 2 G. Gr. 55. 361. On a bill to review a decree in chancery, on the ground that error is apparent on the face of, the decree, the decree is to be treated as in cluding the bill, answer and other proceedings except the evidence at large- and they may be looked into for the purpose of ascertaining whether the alleged error exists. Saum et al. v. Stingley et al., 3 Iowa, 514; Arnold v. Grimes & Chapman, 2 Ibid. 1. 362. In such a case, it is not permitted to go into the evidence at large, either to support the decree or to sustain an objection to it. Ibid. See, further, BILL OF REVIEW. As to relief against judgments, see EQUITY; INJUNCTION. As to judgments before justices of the peace, see JUSTICES OF THE PEACE; in attachment proceedings, see ATTACHMENT; in replevin, see that title; against executor or administrator, see EXECUTOR AND ADMINISTRATOR. See, also, GUARDIAN AND WARD; HUSBAND AND WIFE; BILLS, NOTES AND CHECKS; JURISDICTION. JUDICIAL SALE. I. GENERALLY. II. RIGHTS AND LIABILITIES OF PURCHASER UNDER THE SALE. a. Rights. b. Liabilities. III. VALIDITY OF THE SALE. a. Where sales have been sustained. IV. REDEMPTION. V. THE DEED. I. GENERALLY. 1. It is the policy of the law to protect judicial sales. Coriell v. Ham, 4 G. Gr. 455. 2. On what it depends. A purchase at a judicial sale depends upon the judgment, levy and deed; these being unobjectionable, an innocent purchaser should not be affected by other irregularities. Shaffer v. Bolander, 4 G. Gr. 201. 3. Priority. Where land was first sold in satisfaction of a junior judgment and then subsequently sold to satisfy a senior judgment, held, that the sale under the senior judgment should prevail. Marshall v. McLean, 3 G. Gr. 363. 4. Proceeding to set aside: when to be made. A motion to set aside a sheriff's sale was filed in the district court during vacation and over fifteen months after sale. Held, that the motion was made too late, and should have been overruled. Stewart v. Marshall, 4 G. Gr. 75. 5. who has transferred, by indorsement, promwho may prosecute it. A person issory notes secured by mortgage on real estate, has, by virtue of his collateral liability as indorser thereon, such an interest in hav ing the mortgaged premises sell for their fair value at foreclosure sale thereof, as will entitle him to maintain an action in equity to set aside such sale on the ground of irregularity or fraud when it appears that the premises were sold for less than their value. Whitney v. Armstrong et al., 32 Iowa, 9. 6. Purchase by plaintiff. The execution plaintiff or his attorney who became purchasers under their own executions, from their relation to the cause, should be held, in many cases, to greater strictness, and affected by smaller irregularities than strangers who purchase at such sales. Cavender v. Heirs of Smith, 1 Iowa, 306; Love v. Cherry, 24 Ibid. 204. Generally. 7. Postponement of sale. Where an execution sale was postponed at the request of the defendant, in consequence of which the property levied upon materially depreciated in value, it was held, that the loss resulting from such postponement should not be sustained by the plaintiff. Williams v. Gartrell, 4 G. Gr. 287. be set aside, and that the property should be exposed to a sale for a sum equal to the amount paid by the purchaser, and interest thereon at the rate of ten per cent per annum from date of the sale to date of re-sale; that if no higher sum was bid therefor, that it should be struck off to such purchaser; that if more was offered, the sale should be conducted thereafter in the manner provided by law; and that the proceeds arising from the sale should be first applied to re-imburse the purchaser the sum paid for the 8. Gross inedequacy of price is not of itself sufficient to set aside a judicial sale, but it may become an element quite controlling in connection with other circumstances. Cavender v. Heirs of Smith, 1 Iowa, 306. See Langworthy v. Camp-property at the first sale, with interest thereon bell, 19 Ibid. 568; and §§ 82, 83, post. 9. facts that may be considered in determining. That the interest in real estate sold under execution was an equitable one, which could at any time be terminated by the election of a vendor to treat the contract of sale to the judgment debtor as forfeited, and that it was charged with a homestead interest, will be considered by the court in determining a question as to the adequacy of the amount paid for such interest at a judicial sale. Twogood v. Stephens et al., 19 Iowa, 405. 10. Fraud in judicial sales is not inferred from circumstances, but must be affirmatively shown. Wallace v. Berger, 25 Iowa, 456; Cavender v. Heirs of Smith, 1 Ibid. 306. 11. Duties of sheriff. For many purposes a sheriff in conducting a judicial sale is to be considered the agent of both parties; while he is required to be diligent in securing the money due to the creditor, he is invested with a sound discretion as to the time, place and manner of sale; and this discretion must be exercised with a fair and impartial attention to the interests of all concerned. Swortzell v. Martin, 16 Iowa, 519. 12. Bid of judgment defendant. A bid made by the judgment defendant at a sheriff's sale should be disregarded by the officer. Ibid. 13. Forfeited bid. Upon the failure of the successful bidder at a judicial sale to pay the amount of his bid, the sheriff may either proceed against him for the amount or treat the sale as a nullity and proceed to sell again. The sheriff cannot, on a subsequent day, accept an unsuccessful bid, and convey the property without a re-sale. Ibid. 14. Re-sale of property. When property was irregularly sold under execution to a third party, and the purchase-money was applied to the satisfaction of executions against the judgment defendant, the court ordered that the sale should at ten per cent, and the residue in the manner provided by law. Jensen et al. v. Woodbury et al., 16 Iowa, 515. 15. Purchaser during pendency of appeal. A purchase of land at a sheriff's sale by the plaintiff in execution or his attorney, with actual knowledge of a pending appeal, is at the peril of the purchaser; and the party or his attorney thus buying is not a bona fide purchaser within the meaning of section 3541* of the Revision. Twogood v. Franklin et al., 27 Iowa, 239. 16. Pleading: estoppel. In an action for the recovery of land purchased by the plaintiff at a judicial sale under a judgment against the defendant, the defendant cannot plead as a defense matters which might have been pleaded against the plaintiff in the action wherein the judgment under which the land was sold was rendered. Evans v. Robbins, 29 Iowa, 472. 17. Under execution running to another Under section county: filing of transcript. 32484 of the Revision, executions may issue into any county which the party ordering them may direct; and a valid sale of real estate may, as between the parties, and as to subsequent purchasers having actual notice thereof, be made in one county under execution issued on a judgment in another county, notwithstanding no transcript of the judgment is filed in the county where the land was situated and sold, as provided by section 3249.‡ Hubbard v. Barnes, 29 Iowa, 239. *Reprinted as section 3199, Code of 1873, and as follows: Property acquired by a bona fide purchaser, under a judgment subsequently reversed, shall not be affected by such reversal. + Reprinted as section 3027, Code of 1873, and as follows: Executions from the district court may issue in the first instance into any county which the party or dering them may direct. * Reprinted as section 3031, Code of 1873, and as follows: When a judgment has been obtained in one county in this State, and the judgment creditor desires to |