#### Nancy L. Weaver, Appellant, v. J. S. Stacy, e*t al.*

Volunteer Redemption: no RECOVER? back. Where a decree which 1 finds a fraudulent conveyance and subjects the property to a judgment, is reversed, the graotee in the alleged fraudulent deed 4 cannot recover what he- paid to redeem from sheriff’s sale under the judgment, pending appeal from the decree. He bought at the peril that reversal might make his expenditure needless.

Same. Code, 3198, restoring what is taken on a reversed judgment, 5 does not apply. The judgment under which the property was sold was not reversed, but the decree subjecting to that judgment.

Practice. Error in striking out for misjoinder is waived where the 2 losing party elects to file separate petitions under Code, 2634, 3 though no petitions are actually filed.

*Appeal from Jones District Court.*— Hon. J. H. Preston, Judge.

Saturday, February 2, 1895.

Action at law to recover for money received- by virtue of judgments rendered against D. Weaver. A motion to strike and a demurrer to the petition were sustained. Tire plaintiff refused to plead further, and *appeals.*

Affirmed.

*Bemley & Ercanbrack*for appellant.

*Sheean*& *McGarn, J. S. Stacy,*and *F. 0. Ellison*for appellees.

Robinson, J.

The facts alleged in the petition are .substantially as follows: On the eighteenth day of *684December, 1889, the defendants, J. W. Jamison, J. S. 1 Stacy, and J. L. Sheean, and D. McCarh, partners under the name of Sheean & McCarn, and Benjamin- Chaplin, now deceased, in an action in equity entitled J. W. Jamison et al. v. D. Weaver et al., obtained a decree in the District Court of Jones county against the plaintiff and F. D. Weaver, subjecting certain real estate, certain, tax-sale certificates, and money in the hands of the county auditor paid to- him to redeem, from certain tax-sales, to the payment of certain judgments against D. Weaver. The decree provided that the-auditor should pay to the sheriff all money received in redemption of the real estate from the sales represented by the certificates; that all the property subject to the payment of the judgments, including' the certificates, or so- much thereof as- should be necessary, should be sold on execution to' be issued “upon said judgments of plaintiff herein.” It further provided that the amount of certain taxes should be paid, and that the. judgments should then be paid in the order as follows: First, to J. W. Jamison;' second, to B. Chaplin; third, to J. S. Stacy; fourth, to Sheean & McCarn. The decree also contained the following provision : “And that the purchaser or purchasers at such sale take such property, or whatever is sold thereof, free from and clear from all claims on the part of said defendants aforesaid, either at law or in equity, and that they be forever barred from all interest therein; that plaintiff have judgment against the defendants D., F. D., and N. L. Weaver for the costs of this cause, taxed at $51.95.” Under that decree the county auditor paid to the sheriff two hundred and seventy-four dollars and fifty-five cents, which' was applied upon tire judgments. An execution was issued on the judgment in favor of J. W. Jamison, and under it a part of the tax-sale certificates were sold, and on the fifteenth day of March, 1890, *685the sum of two hundred and twenty-two dollars and ninety cents was received from the sale in satisfaction of the execution. On the same day the sheriff received one hundred and ninety-one dollars and fifty-five cents on a sole of certificates under an execution issued on the judgment In favor of Chaplin, and ninety-seven dollars and twenty-five cents on a sale of certificates made under an execution issued on the decree in Jamison et al. v. D. Weaver et al. On the same day the sheriff sold other certificates and real estate under an- execution issued under a judgment in favor of J. S. Stacy, and applied the amount realized from the sale, and seventy-nine dollars and twelve cents, which he had -probably received from the county auditor, in hll the sum of six hundred and forty-seven dollars and fifty-nine cents, to th'e payment of the judgment. On the same day the sheriff sold real estate in Anamosa under an execution issued on the judgment in'favor of Sheean *&*McCarn, for which he received one thousand and sixty-eight dollars and forty-five cents, of which nine hundred and sixteen dollars and eighty-five cents were applied in payment of that judgment, and one hundred and fifty-one dollars and sixty cents in payment of the judgment in favor of J. S. Stacy. On the fourteenth day of March, 1891, F. D. Weaver redeemed a part of the property in Anamosa, which was sold under the execution in favor of Sheean & McCarn for the sum of one thousand one hundred and fifty-one dollars and seventy cents. On the same date the plaintiff redeemed other real estate which had been sold under the different executions. A portion of the real estate sold was not redeemed, and sheriff’s deeds therefor were issued to the respective holders of the certificates of sale. The decree in *Jamison v. Weaver*was x’eversed on appeal to this court (84 Iowa, 611), a *procedendo*was issued, and the decree was set aside by the District Court, and judgment was *686rendered in favor of the plaintiff for costs. F. D. Weaver has assigned to the plaintiff whatever right, growing out of the litigation, he had against the defendants. The plaintiff has paid costsi for transcripts and expressage in the case appealed, to the amount of seventy-five dollars. Sheean & McCarn have paid seventy-seven dollars and seventy-five cents to apply on costs in their case against D. Weaver. Nothing else has been paid by any of the defendants. The estate of Chaplin has been settled, and his widow and heirs have been made parties defendant. The plaintiff demands judgment against all the defendants. for the sum of three 2 thousand two hundred dollars with interest and costs.. J. S. Stacy filed a motion asking the court to strike from the petition all causes of action against all parties excepting himself, on the alleged ground that there was a misjoinder of causes of action and of parties. The other defendants filed similar motions. Upon the submission of these motions the court made an order as follows: “Upon the motion of defendant Stacy, the names of all other defendants are stricken out of the petition, and all causes of action are stricken as to him, except that alleged to have arisen by reason, of the execution in his favor against D. Weaver, and for the costs in the equity cause, and the plaintiff then and there elected to file separate petitions against the other defendants; and the court, on plaintiff’s motion, allowed plaintiff thirty days in which to file said petitions.”' The' defendant Stacy then demurred to that portion of the petition which was based on the seizure and .sale of property under the execution issued on the judgment rendered in his favor and against D. Weaver. Upon the submission of the demurrer the court made an order as follows: “The demurrer of the defendant to the petition is sustained in so far as it is sought to recover of defendant Stacy *687for tbe real estate sold on bis execution, and overruled as to tbe residue of tbe same.” Tbis appeal is from tbe order of tbe District Court sustaining tbe motion to strike and from tbe order sustaining tbe demurrer.

I. Tbe appellees have filed a motion to dismiss tbe appeal from tbe order sustaining tbe motion to strike, on tbe ground that tbe appellant elected to file 2 separate petitions against the other defendants as to tbe causes of action stricken out, and because she afterwards filed separate petitions as sbe bad elected to do. The appellant insists that the record in tbis case does not show that she has filed separate petitions as alleged, and that if she bad done so sbe would not have prejudiced her right to prosecute her appeal. Section 2632 of the Code provides thiait “the court, at any time before the defense, shall, on motion of the defendant, strike out of tbe petition any cause or causes of action improperly joined with others.” Section 2634 is ais follows: '‘When a motion is sustained on a ground of misjoinder of caiuses of action tbe court, on motion of tbe plaintiff, shall allow him, with or without costs in its discretion, to file several petitions, each including such of .said causes of action as might have been joined, and action shall be docketed for each of said petitions and the same shall be proceeded in without tbe further service, and tbe court shall determine by order tbe time of pleading therein.” Tbe order in question was made under that section, and was designed to be for tbe benefit of tbe plaintiff. She insists that it gave her no right that she did not possess before. But that is not strictly correct. Hud sbe not commenced tbis action, sbe could have maintained separate actions against tbe several defendants; but, having joined them all in one, — improperly, as we must assume tor tbe purposes of tbis branch of tbe case,— *688when objections were made she would have been compelled to dismiss as to all the causes of action improperly joined, had she not been permitted to file separate petitions, under section 2634. The law does not favor a multiplicity of actions. Two actions cannot be maintained at one time between the same parties for the same cause, if objection be made. Code, sections 2648, subdiv. 3, 2650, 2732. When the plaintiff elected to file separate petitions against all the defendants but Stacy, she did that which was inconsistent with a further prosecution of this cause 'excepting as to him; for the relief she must ash in the separate petitions against a part of the defendants' was included in that 3 demanded in this action against all of them. The election to file separate petitions against some of the defendants was a waiver by the plaintiff of any error committed as to them in this action. See *Gordon v. Ellison,*9 Iowa, 317; *Lillie v. Skinner,*46 Iowa, 329. A party cannot accept the benefits of an adjudication which is not separable, and at the same time prosecute an appeal from it. See *Buena Vista Co. v. Iowa Falls*& *S. C. R. Co.,*55 Iowa, 160, 7 N. W. Rep. 474; *Independent Dist. of Altoona v. District Tp. of Delaware,*44 Iowa, 201; *West v. Fitzgerald,*72 Iowa, 307, 33 N. W. Rep. 688; *Reichelt v. Seal,*76 Iowa, 276, 41 N. W. Rep; 16; *Hintrager v. Mahoney,*78 Iowa, 542, 43 N. W. Rep. *522; Agency Co. v. Bush,*84 Iowa, 281, 50 N. W. Rep. 1063. We conclude that the appellant has waived the error, if any, committed by the District Court in sustaining the motion of Stacy to strike, and cannot now object to it, and this is true whether she followed her election to file separate petitions by filing them, or not. The election does not appear to have been waived, and the parties in interest were entitled to rely upon it. The motion of the appel-*689lees to dismiss tine appeal, so far as it relates to that motion, is sustained.

II. The demurrer of the defendant Stacy, so far as we are required to consider it, was directed to that part of the petition which seeks to recover for the money paid to redeem the real estate sold to satisfy his 4 judgment against D. Weaver. The effect of the ruling on the demurrer was to hold that there can be no recovery by the plaintiff for money so paid. The petition alleges that Stacy caused certain' real estate which it describes to be sold, and that it' belonged to the plaintiff. She contends that the petition charges that it was her interest, 'and not that of D. 'Weaver; which was sold; therefore that she had a right to protect that interest by paying the amount required to redeem' froan the sale, and that, as the decree under which the sale was made has been reversed, she iis entitled to recover the money so paid. The demurrer admitted only what was well pleaded. The petition shows that the judgmeufnow in question was rendered in favor of Stacy and against D. Weaver. There is no pretense that it was against the plaintiff, and the property which belonged to her, and which she had a right to hold as against the creditors of D. Weaver, could not have been legally sold to satisfy the judgment. The .sale was necessarily of the real estate, or of an interest therein, which was subject to sale for the payment of the judgment. The decree under which the sale was made subjected the property in question to the payment of the judgment, but it was not final, and the purchaser was required to take notice of that fact, and bought at his peril. The rule *caveat emplor*applies to sheriff’s sales. *Jones v. Blumenstein,*77 Iowa, 366, 42 N. W. Rep. 321; *Downard v. Crenshaw,*49 Iowa, 300; *Dean v. Morris,*4 G. Greene, 313; Rorer Jud. Sales, section 476. A judgment of a court of record is a lien *690upon the interest in real estate of the judgment debtor as it existed at the time of the rendition of the judgment, and upon what he may afterward acquire for the period of ten years from the date, of the judgment (Code, section 2882), and upon none other (Freemen Judgm., sections 356, 357; Freemen Ex’ns, section 195). In selling property under execution,the sheriff professes to sell the interest of the judgment debtor, and nothing else. *Dean v. Morris,*4 G. Greene, *313; Holtzinger v. Edwards,*51 Iowa, 383, 1 N. W. Rep. 600. It follows from these authorities that no interest of the plaintiff was sold under the execution in favor of Stacy, and that it was not necessary for her to redeem from the sale in order to protect her interest. That she was uncertain whether the decree of the District Court would be reversed did not affect her legal rights. She paid the money to redeem out of abundant caution to protect her interests, but in doing so incurred the risk of paying it unnecessarily. She was not within the provisions of section 3090 of the Code, and in law the. payment was voluntary on her part. There was no mistake of fact, compulsion, nor fraud, and the plaintiff cannot recover the money so paid. *Dickerman v. Lord,*21 Iowa, 338; *Morris v. Sioux Co.,*42 Iowa, 416; *Murphy v. Creighton,*45 Iowa, 183; *Painter v. Polk Co.,*81 Iowa, 242, 47 N. W. Rep. 65. Something is said to the effect that the sale was made under the decree in the equitable action, but it is clear that such was not the case. The decree merely determined that the real estate was subject to sale for the payment of the judgment. Had the sale been made under the decree, however, the payment of money in- redemption from the sale would have operated as a waiver of the appeal, so far as it affected the real estate redeemed. *Thayer v. Coldren,*57 Iowa, 112, 10 N. W. Rep. 300; *Hintrager v.**691*Mahoney, 78*Iowa, 542, 43 N. W. Rep. 522; *Hipp v. Crenshaw,*64 Iowa, 404, 20 N. W. Rep. 492; *Agency Co. v.*5*Bush, supra.*The appellant relies upon section 3198 of the Code, which provides for the restoration of property taken by virtue of a judgment or order which has been reversed by this court, and upon *Zimmerman v. Bank,*56 Iowa, 133, 8 N. W. Rep. 807. But neither the statute nor the case cited applies in this case, for the reason that, as we have seen, mo property of the plaintiff was taken under the decree reversed. The conclusions announced dispose of the controlling questions in the case. We find no ground for reversing the order of the District Court, and it is *affirmed.*