Savery v. Sypher

APPEAL from the Circuit Court for the District of Iowa.

Keene having conveyed to Savery a piece of land, Savery gave him a mortgage on the same to secure the purchase-money. Keene died before receiving payment of this money; and the administratrix of his estate, Mrs. Sypher, filed a bill to foreclose the mortgage. Answers and replications were put in, but no proofs were taken, and when the cause was called for hearing, the parties, by their attorneys, in open court agreed on the amount that was due, and a regular decree of foreclosure in the usual form was entered by the court. The money not having been paid by the day appointed, the property was advertised and struck off by the master at the instance of White, the attorney of record, to Mrs. Sypher, the administratrix, in satisfaction of the decree. A controversy now arose between Savery and Mrs. Sypher, the administratrix, as to whether this sale thus made to her by order of her attorney White, should be confirmed.

It appeared that Savery had been desirous of returning the land to Keene's estate, and of having the mortgage cancelled. Negotiations were accordingly had between the parties. Whether, as converting personalty into realty, they resulted in an agreement obligatory on the administratrix, was one question raised; the validity of it being denied by the counsel here of the appellee. In any case, there was conflict in the testimony as to the terms of the agreement. Mrs. Sypher swore that she consented to receive the property, provided it was returned to her in the same condition as when it was conveyed to Savery, and that she positively refused to sign written stipulations concerning the sale and purchase which were presented to her for her signature before the sale by her attorney, White, and afterwards by Seeley, his clerk, because the stipulations did not provide for a payment of the taxes that had become due on the property, about $300, since the sale or conveyance. Savery, who was also sworn, contradicted this statement in material points, and he was sustained by White, while Seeley and another witness, Mrs. Price, directly supported Mrs. Sypher. Upon this case-which on each side was made wholly by ex parte affidavits-the court below refused to confirm the master's sale, and ordered a resale of the property. Savery appealed to this court to have those proceedings reviewed.

Mr. Ashton, for the appellant:

1. On the facts. The court below was not justified, upon the affidavits before it, in finding that the appellant had ever promised to pay the taxes due on the land.

2. On the law. The court below erred in attempting to determine the issue, raised by the motions, upon these ex parte affidavits. The question of fact, as to the existence of the agreement set up by the appellee, should have been determined only after a full opportunity had been given to the appellant to cross-examine her witnesses before an examiner or master in chancery, and to contradict them by counter evidence. No other form or method of investigation, was adequate to the real purpose in view, to wit: the ascertainment by the court of the fact alleged by the appellee, in avoidance of her purchase.

Mr. P. Phillips, who filed a brief for Messrs. Mason, Polk, and Hubbell, contra.

Mr. Justice DAVIS delivered the opinion of the court.