53 Iowa 27 | Iowa | 1881
Afterward Bailey brought an action to foreclose the bond, and a judgment was rendered therein against Tyler in November, 1875, for the principal debt and such interest as had accrued thereon subsequent to the first judgment. The bond was foreclosed and a special execution directed to issue for the sale of the real estate. The premises were sold under an execution issued on said judgment in January, 1876, to Bailey. Tyler had the right to redeem from- this sale within one year.
In October, 1876, Bailey caused an execution to issue on the first judgment against Tyler and the plaintiff By direction of the latter, and contrary to the directions of Bailey, the defendant Cavanagh, as sheriff, levied on the interest of Tyler in said real estate. It was duly advertised for sale. Because of directions received from Bailey- the sheriff refused to offer the property for sale, although the plaintiff was ready and willing to bid therefor the amount of the execution and costs, and the execution was returned by the sheriff.
Subsequently Bailey caused another execution to. issue, which was levied on the property of the plaintiff. To restrain the sale of such property, and in some form or manner to charge the real estate aforesaid with the payment of said judgment, is the object of this action. The legal propositions necessary to be determined are, whether Bailey can be compelled to resort to Tyler’s interest in the real estate to obtain satisfaction of his judgment before he can call on the plaintiff. The judgment in which' the plaintiff stayed execution was general. No special lien was created thereby which, by operation of law or otherwise, related back of the judgment. It, therefore, became a lien on Tyler’s interest from its rendition only. Code, section 2883.
The judgment rendered in the foreclosure proceeding related
It is urged that the plaintiff, as surety for Tyler, could not point out and require Bailey to levy on the incumbered prop■erty of the .principal debtor. This question wo are not required to determine, because the objection that the property was incumbered would be without weight if any person was ready and willing to bid, when offered for sale, the amount of the execution and costs. This must be true, at least as to Bailey, for if the sale had taken place and the plaintiff had bid the amount of the execution for Tyler’s interest in the real estate, this'would have satisfied the debt, and more than this Bailey could not with reason ask.
As Tyler had an interest in the real estate, Bailey could not levy on the property of the plaintiff until the property of the principal debtor was exhausted. All the surety has to do in such case, in order to protect his property from being levied upon, is to point out property belonging to the principal debtor. This was done in this case, and the property should have been offered for sale.
It is urged by the appellee Bailey that such sale would have incumbered his right or title. It is clear, however, as he held under the first lien the plaintiff would take nothing by his purchase but the right to redeem and the immediate possession. The right of redemption probably existed without the formula of a sale. But it only existed during the period
The plaintiff, by. a purchase of Tyler’s interest, would, we think, have obtained valuable rights.
Reversed.