Louden & Manly, Grinnell, for appellant.
E. W. McNeil, Montezuma, for appellees.
In this action plaintiff seeks to recover from an execution creditor, a trustee for the benefit of creditors, and from the receiver in the foreclosure proceedings, the remaining installments due under a contract of sale of certain real estate entered into between the plaintiff and the judgment debtor; also for real estate taxes advanced on the real estate in question which was sold under special execution by the trustee. It is before us on a question of pleading.
Originally, plaintiff filed his petition in three counts to which the defendant made a motion to dismiss. The trial court, Hon. Frank Bechly presiding, sustained the same
on all of the grounds set forth in said motion. Thereafter, and within the time allowed by the court, plaintiff filed an amended and substituted petition as to count II of the petition which was dismissed under the prior ruling. To this, defendants filed a motion to dismiss, setting forth the same grounds as were alleged in the prior motion, and in addition that it was merely a repetition of the former petition. The trial court, Hon. R. G. Yoder presiding, sustained the motion upon the last stated ground. Plaintiff appeals from both rulings.
The original petition, Count II only is considered, in substance set forth the following facts. Plaintiff is the owner of the legal title to two tracts of land, described, in Grinnell, Iowa, which was sold under contract in 1944 and 1945, to one Edward Andersen. Warranty deeds were to be delivered upon full payment being made by installments, as set forth in the contracts. In 1947 Andersen executed a mortgage upon his assets to Don E. Neiman, as trustee for the benefit of his creditors. Included [245 Iowa 933] in the mortgage was the real estate purchased under the contracts, and upon which there were installments coming due in the future. Later in 1947 Andersen assigned his interest in the contracts to Don E. Neiman, as an individual. In April 1952, Neiman, Trustee, foreclosed the mortgage and was also appointed as Receiver to collect the rents and profits. Special execution issued and the property was sold to Plaintiff for the full amount of the judgment. Sheriff's certificate issued.
It was further alleged that the sale purported to be of the entire interest in the real estate, which was in fact, a greater interest than Andersen had therein, and also to include the interest of Don E. Neiman under the assigned contracts. That Neiman was not a party to the foreclosure action. That if a deed was issued under the certificate it would be subject to the interest of Neiman and to the unpaid balance due under the sale contracts with Andersen, all contrary to the sale as advertised. That there was due on the contracts the sum of $2,350.00 with interest, and the additional sum of $1,201.28 for real estate taxes for the years 1944, 1945 and 1946, which had been advanced by plaintiff. Judgment for these amounts is asked against Don E. Neiman, Receiver.
Defendant Don E. Neiman, Receiver, filed a motion to dismiss the petition alleging, among other matters, that it failed to state a cause of action. The trial court sustained the motion upon all of the grounds alleged in the motion.
Thereafter, and within the time allowed by the trial court, plaintiff filed an amended and substituted petition alleging the facts above set forth. In addition, it is alleged that at the time of the sale, plaintiff inquired as to what was being sold and was informed that it was being sold as advertised. The real estate was advertised by its legal description with no mention made of any equitable interests therein. That in reliance thereon, he purchased the same and paid the full amount of the judgment. That since the sale, the Receiver has paid to plaintiff the sum of $1,000.00, representing payments due under the contracts up to and including March 1, 1953, but refuses to make further payments thereon. He also refuses to pay the amount of taxes advanced. Judgment is asked against Don E. Neiman, [245 Iowa 934] Trustee, and Don E. Neiman, Receiver, for the same amounts asked in the original petition.
Both defendants filed motions to dismiss the petition, alleging the same grounds advance in the prior motions and the additional ground that the substituted petition was merely a repetition of the original one. The trial court sustained the motion on the additional ground alleged with no reference being made to the other grounds.
I. Appellant asserts error in the dismissal of the substituted petition on the ground that it was a mere repetition of the original one.
An examination of the two petitions shows that while many of the allegations are repetition, there are matters alleged which are not contained in the original one.
It is alleged that it was represented to plaintiff, at and prior to the sheriff's sale, that the entire estate was being sold when in fact such was not the case. That relying upon this representation, the plaintiff purchased the property. In fact, it appears as if it was intended to allege fraud which was not in the former one. The substituted petition also asks judgment against both of the defendants, while in the former a judgment ...