Albee v. Curtis, 77 Iowa 644

77 Iowa 644 | Iowa | 1889

Rothrock, J.

The agreed statement of facts appears to include every question in controversy in the case. The stipulation in which the facts are recited is, in substance, as follows : One C. D. Loper became the owner of the land in controversy in 1868. In 1872, Loper mortgaged the land to one Skinner, to secure the payment of fifteen hundred dollars, which mortgage became due January 1, 1877. On the twenty-ninth day of February, 1872, Skinner sold and assigned the mortgage to one Henry A. Dubois, who was then and after-wards, until his decease, a resident of the state of New York. On the eighteenth day of January, 1877, Dubois commenced an action to foreclose the mortgage. A decree of foreclosure was afterwards entered, and the land was sold upon foreclosure to said Henry A. Dubois, and a sheriff’s deed was executed to him on the nineteenth day of September, 1879. Afterwards said Dubois died. On the tenth day of March, 1880, the heirs of Dubois, all of whom were non-residents of this state, sold and conveyed the land to one Emma F. Kellog; and on the twenty-second day of April, 1885, said Emma F. Kellog conveyed the same to the plaintiff, who soon thereafter went into possession of the premises, and since the commencement of the foreclosure proceedings the plaintiff and his grantors have paid all taxes on the land. On the twelfth day of October, 1876, Curtis, Stephenson & Morey, now Curtis & Morey, recovered a judgment against said Loper in an action before a justice of the peace in Butler county, in this state. A transcript of this judgment was duly filed and docketed in the office of the clerk of the circuit court of Butler county on the fourteenth day of December, 1876. On the first day of J anuary, 1877, a transcript of said judgment was filed in the office of the clerk of the court in Floyd county. On the thirteenth day of December, 1886, an execution was issued on said judgment from the office of the clerk of the circuit court of Butler county to the sheriff of Floyd county; and on said thirteenth day of December the sheriff of Floyd county levied said execution upon the land in controversy; and on the eighth day of February, 1887, said sheriff sold the land in question to Curtis & Morey, the defendants in this action, and issued to them a sheriff’s certificate of sale. The defendants were not made parties to the action for the foreclosure of the mortgage.

It must be conceded that the title of the plaintiff is complete and perfect unless the defendants have a right to redeem from the foreclosure sale by reason of being the holders of a junior judgment lien upon the land. It is claimed that such right is barred by the statute of limitations. The lien of defendants’ judgment attached to the land on the first day of January, 1887. The mortgage upon which plaintiff’s title is founded became due on the same day. The defendants had a lien upon the land for ten years from the date of the filing of the transcript in the clerk’s office in Floyd county. It is provided by section 2882 of the Code that “judgments in the supreme, district or circuit court of this state, are liens upon the real estate owned by the defendant at the time of such rendition, and also upon all he may subsequently acquire, for the period of ten years from the date of the judgment.”

It is claimed by counsel for appellants that, because execution was issued .on the judgment before the ten years’ limitation expired, and the land was afterwards sold, the lien of the judgment was thereby extended. We do not think this position can be sustained. The defendants acquired no title nor right, as against the plaintiff, by reason of the levy and sale, that they did not then possess by the judgment. The equity of redemption of the owner had been foreclosed years before, and the only right the defendants had was a right to redeem from the plaintiff or his grantors, and this was based upon the fact that defendants were not made parties to the decree of foreclosure. They had no other right than the right of redemption. They did not offer to redeem within ten years; and, for that matter, they do not now offer to redeem. Their rights are measured by the statute above cited. It is a lien for the period of ten years from the date of the judgment, and as to prior lien-holders the right to redeem is absolutely barred in ten years. Gower v. Winchester, 33 Iowa, 303; Crawford v. Taylor, 42 Iowa, 260.

It is further claimed in behalf of appellants that the ten years allowed for redemption is in the nature of a limitation of a right to redeem, and that as Henry A. Dubois, the assignee of the mortgage, who acquired the title to the land under the foreclosure sale, was a nonresident of this state (as well as his heirs), the time during which the title was held by him and his heirs should be excluded in computing the ten years’ limitation. In other words, it is contended that the statute of limitations, as found in sections 2529 and 2533 of the Code, which provide that the time during which a defendant is a non-resident of the state shall not be included in computing the periods of limitation provided .for in that chapter of the Code, applies to the judgmentTien,

In our opinion this is a mistaken view of the law applicable to judgment liens. They are created by statute, and can continue no longer than the statute declares they shall continue, which is ten years. They expire and cease to be liens at the expiration of the time fixed, no matter where the residence of the parties in interest or the owners of the land may be. It is said in Hendershott v. Ping, 24 Iowa, 134, that “the mere lapse of time annihilates the lien” of a judgment. It would seriously affect titles of non-residents if it should be held that a junior lien of this kind does not expire by limitation, so long as the owner remains a non-resident. It appears to us to be very plain that the general statute of limitations can have no application in a case like this. Affirmed.