Williams v. Allison. affords an additional and strong reason for setting aside the sale. Such sale of the property of two separate owners tends to defeat and greatly embarrass in any event and always, the right of redemption. If such sale was attacked diligently and without any laches, there would be but little difficulty in holding it voidable certainly, even if the property had passed into the hands of bona fide third persons for value. In any event there can be no question, either upon principle or authority, and whether the irregularity of sale in gross rests upon the common law or upon statute, that so far as the property still held by Allison is concerned, the sale should and must be set aside. Grapengether v. Fejervary, 9 Iowa, 163; Boyd v Ellis, 11 id. 102; Bradford v. Limpus, 13 id. 424; White v. Watts, 18 id. 76; Lay v. Gibbons, 14 id. 377; Love v. Cherrie, 24 id. 210; King v. Sharp, 26 id. 286; Tieman v. Wilson, 6 Johns. Ch. 411; Hewson v. Daggard, 8 Johns. 332; Woods v. Monell, 1 Johns. Ch. 502; Goff v. Jones, 6 Wend. 522; Cunningham v. Cassidy; 17 N. Y. 276; S. C., 7 Abb. Pr. 183; Troup v. Wood, 4 Johns. Ch. 228; Bunker v. Rand, 19 Wis. 258; Anus et al. v. Lockwood et al., 13 How. Pr. 556. Our statute (Rev., § 3319) provides for a further and special subdivision of land for the purpose of that particular sale, and does not otherwise affect the common-law rule as to sale in parcels. V. As to the property held by purchasers from the defendant Allison, we hold, that their title cannot be disturbed, and the sale as to them will not be set aside. There is no showing of any bad faith on the part of any one of these purchasers, or that they had any actual notice of any fraud on the part of any one, or of any irregularity even, in the sale. They are only charged with constructive notice of what appears from the records. Although such sale might have been held void as to the execution defendant and purchaser, and all others, if it had been promptly VOL. XXXIII. — 37 Williams v. Allison. assailed by proceedings to set the same aside; yet, since these plaintiffs have been guilty of great delay, if not of culpable laches, in attacking the sale, following Jackson v. Newton, 18 Johns. 355, we will not inquire whether it is void, but accept the general rule as stated in San Francisco v. Pixley, 21 Cal. 56, that such sales are not void but voidable. And such sale, though voidable, will not be vacated after a great lapse of time, so as to work injustice upon third parties. Mohawk Bank v. Atwater, 2 Paige's Ch. 54; Cunningham v. Cassidy, 17 N. Y. 276 (i. e.), 282. It is shown that the defendants, who have purchased the property from the defendant Allison, have respectively improved their lots by the erection of buildings thereon of from $1,000 to $40,000 each in value, and that the lots have increased in value since they purchased from Allison, and upon the prices paid by them near ten-fold. Many of the lots have been made homesteads; others, places of business, and one a public school. To disturb all these parties, who have in good faith made their purchases and improvements, after the lapse of about six years, and the greatly enhanced value of the property, without a very clear and satisfactory showing of cause for the delay, would be to unsettle titles and reward the negligent. In view of all the facts, we are clear, that the title of these good faith purchasers from Allison should not be unsettled, but should be quieted in the respective owners thereof. Noyes v. True, 23 Ill. 503. We have now disposed of all the questions made in the argument of the case, and our views lead us to the conclusion that the judgment of the district court must be reversed. The sheriff's sale and deed of the lots, so far as respects those owned by Allison at the time this suit was commenced, will be set aside and the title quieted in the plaintiffs. As respects the lots sold and conveyed by Allison to good faith purchasers, before this action was Williams v. Allison. begun, the title will be quieted in such purchasers and owners. Some question has arisen in our minds as to whether the defendant Allison shall be charged with the price he bid for the lots sold by him to third persons, or shall be charged with the amounts he has received for them. At first view it seemed to some of us that the latter was the true rule, and this for the supposed reason that Allison was the holder or custodian of the legal title in trust for these plaintiffs, and being a trustee he should account for the proceeds of the trust property. But on further examination, and in the absence of proof showing any actual fraud, and with the positive and uncontradicted testimony of the sheriff that he made the sale in the manner he did, on his own motion and without any request by Allison so to do, or knowledge by him of his purpose so to sell, we think he should be held to account for only the amount of his bid for the lots sold by him, this amount to be ascertained and fixed by the proportionate value of the lots sold to all the lots purchased. This view finds its support in the fact that the sale is voidable for the mere irregularity of the sheriff, and if the defendant had sold all the lots, prior to the bringing of the suit, we know of no principle of law or equity which would make him a trustee of the proceeds of such sale for the benefit of the judgment defendants. If he would not be trustee when he had sold all, why should he be when he has only sold a part. It seems that the principle upon which the judgment debtor may reach property irregularly sold by the sheriff is that he has an equity in the property arising from, or which is not cut off by the irregular sale, which equity he may enforce against the property itself while in the hands of the parties charged with notice of such equity, but which, in the absence of fraud, will not be carried beyond the property itself. In other words, if the judgment debtor, by his negligence or laches in asserting his equity, suffers the party to change Williams v. Allison. his relation to the property, so that the property itself cannot be reached, he must lose the benefit of such equity. Indeed, this is the general rule, for if one have an equity in real property held by another, and which, as against that other, might be enforced; yet, if that other sell to a third party, as against whom such equity could not be enforced, this fact alone will not give the one a right to collect the value of his equity from the other, who by his sale had cut it off from the property itself. The cause will therefore be remanded with directions to the district court to set aside the sheriff's sale and deed so far as respects the lots held by Allison; to ascertain, by reference or otherwise, the proportionate value of the lots sold by Allison, upon the basis that all were worth $1,652.05, the amount of his bid, and to credit such amount upon the judgment of Allison v. Henn, Williams & Bacon, setting aside the original credit and satisfaction; also to ascertain, in the same manner, the whole amount of taxes, penalty, interest, costs, etc., which Allison has paid upon all the property and which was a lien thereon at the time of his purchase, and fix the proportion which should be paid by the lots still held by Allison, upon the basis of their proportionate value of the whole property; and also to ascertain the amount of taxes, etc., paid by Allison since his purchase upon the lots still held by him, and for the aggregate of these two latter sums, with interest from dates of payment, Allison will be entitled to a lien upon the property, and the same may be enforced by special execution. And execution may also issue upon the original judgment for the balance still due thereon, and for that purpose the judgment will be considered as revived against Elizabeth S. Henn, the executrix and devisee of B. Henn, deceased. Or, at the request of either party these supplemental proceedings and final judgment may be had in this court. Reversed. Greene & Co. v. Thomson. GREENE & Co. v. THOMPSON. 1. Promissory note: GUARANTOR: DEMAND AND NOTICE. In order to hold a guarantor of a promissory note under the rules of the common law, he must, within a reasonable time, have been notified of demand upon and non-payment of the maker. 2. 3. As to what constitutes reasonable notice depends upon the facts of each case; and if it appears that the guarantor, as to his remedy against the maker, suffered no injury from delay in giving the notice, he will not be absolved from liability. A guarantor is not entitled to the same notice as an indorser. It is accordingly held, that he cannot urge, as a defense, that he was not notified in time to enable him to notify and hold prior indorsers from or under whom he acquired the note. Appeal from Mahaska Circuit Court. FRIDAY, JANUARY 26. ACTION against defendant as the guarantor of a promis sory note. Trial to the court without a jury, and judgment for plaintiff. Defendant appeals. Z. T. Fisher for the appellant. Lacy & Shepherd for the appellees. BECK, J.-The note, of which defendant is a guarantor, by a writing indorsed thereon, fell due August 25, 1869. Plaintiffs, being the holders, on the 17th day of November following, gave notice of non-payment to defendant, and, on the 18th day of December, brought suit against defendant on the guaranty. When suit was brought, the makers of the note were solvent, and had property subject to execution sufficient to pay the note. Two prior indorsers, under whom the defendant had acquired the note previous to his transfer to plaintiff, are solvent; from them the note may |