129 Ind. 573 | Ind. | 1891
On the 3d day of January, 1876, Jeremiah Anderson executed a promissory note to the appellant, and, to secure payment of the note, Jeremiah and his wife Sarah
Counsel argue that the lien of the mortgage was not • merged, and that the lien still exists, notwithstanding the sale, and refer us to the case of Teal v. Hinchman, 69 Ind. 379. It is true that the lien of a mortgage is not always merged in a judgment, and that equity will preserve the lien when necessary to prevent injustice. Evansville, etc., Co. v. State, ex rel., 73 Ind. 219; Pence v. Armstrong, 95 Ind. 191 (207).
But the doctrine stated does not rule such a case as this. The principle which controls the present case may be thus stated : The sale on a judgment or decree exhausts it as to the property sold, and the judgment creditor can not, after-redemption by a junior encumbrancer, resell the land to enforce payment of an unsatisfied part of his judgment. Horn v. Indianapolis Nat’l Bank, 125 Ind. 381; Green v. Stobo, 118 Ind. 332; Hervey v. Krost, 116 Ind. 268; Simpson v. Castle, 52 Cal. 644; People, ex rel., v. Easton, 2 Wend. 298; Russell v. Allen, 10 Paige, 249; Clayton v. Ellis, 50 Iowa, 590.
The object of the law is to compel creditors to bid a fair and adequate price for the debtor’s property, and to prevent
It is a mistake to suppose that the law intends that the redemption by a junior encumbrancer shall be for the benefit of the creditor, upon whose judgment the land was sold; for, on the contrary, the right of redemption is created for the benefit of the debtor and junior encumbrancers. When a junior encumbrancer redeems he does so, in contemplation of law, for his own benefit, and not for that of the creditor upon whose judgment the sale was made. Porter v. Pittsburgh, etc., Co., 122 U. S. 267.
It is insisted by the appellant’s counsel that the case is governed by the statute enacted prior to 1881, and that the decision in Greene v. Doane, supra, controls. But this position is untenable. Even if it were conceded that the doctrine of Greene v. Doane, supra, is sound, it would not follow that it governs here. It has been directly decided by the Supreme Court of the United States, and impliedly by this court, that statutes creating a right to redeem may be altered. The right to redeem is solely the creature of statute ; it relates to the remedy, and is not, as it is held, so essentially and intrinsically a contract right as to be entirely beyond legislative control. Connecticut, etc., Ins. Co. v. Cushman, 108 U. S. 51; Davis v. Rupe, 114 Ind. 588;
Judgment affirmed.