Youd v. German Savings & Loan Society

McLAUGHLIN, J.

Action to quiet title.

The court found against the plaintiffs on the vital issue, and the sufficiency of the evidence to support such finding is challenged by the appellants. All the parties to the action claim title under A. E. and Thomas Upton, who purchased the land from one Martin in 1881. The said owners mortgaged the land to respondent, and as a result of an action to foreclose such mortgage, the property was sold to respondent by a commissioner on July 10, 1897, for the sum of $30,-475, and a certificate of sale in due form was thereupon issued to the said purchaser. On December 18, 1897, T. C. Law, who held a mortgage on an undivided one-half of said land, executed and delivered to him by A. E. Upton on February 15, 1896, served a notice of redemption in proper form on the commissioner who made the sale under foreclosure, and at the same time paid to said commissioner the amount for which the land was sold, with two per cent per month thereon, and thereupon a certificate of redemption in due form was issued to him. After receiving such certificate, Law assigned the same to W. S. Goodfellow, who was the at

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torney for respondent in the foreclosure suit, and the latter thereafter assigned it to respondent. On February 18, 1898, the commissioner executed and delivered a deed to respondent, who claims title thereunder.

In January, 1890, Thomas Upton commenced an action to dissolve the partnership then existing between the owners of said realty. This action finally resulted in an agreement of compromise, containing the terms of a judgment which was duly entered on March 5, 1896. In such judgment it was decreed that the realty was purchased as partnership property, for use in the partnership business, but that the legal title thereto was conveyed to Thomas and A. E. Upton, as equal tenants in common thereof. This recital as to the title was followed by a paragraph wherein it was distinctly and positively adjudged that A. E. Upton was the owner of an undivided one-half of said realty, and that the estate of Thomas Upton, then deceased, owned the other undivided one-half. After decreeing that neither of the parties to said litigation had any claim against the other, A. E. Upton, who had possession of the real and personal property owned by said partnership, was directed to deliver such property to a receiver in the suit to dissolve the partnership and for an accounting. Meantime several attachments issued in suits against A. E. Upton, individually, and as surviving partner of the firm of A. E. and Thomas Upton, had been levied upon the property, and A. E. Upton, on March 13, 1896, was compelled to file his petition and schedule in insolvency. On October 9, 1897, the assignee in the insolvency proceedings and some of the creditors filed a petition in the action to dissolve the partnership, praying that said Deane, as receiver, be directed to sell “the equity of redemption belonging to said partnership of T. and A. E. Upton and to the estate of said A. E. Upton, an insolvent, in and to the land in controversy, subject to the mortgage lien of the German Savings and Loan Society.”