77 Iowa 644 | Iowa | 1889
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
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
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