Barney v. Myers

28 Iowa 472 | Iowa | 1870

Cole, Ch. J.

It is the settled doctrine of this State, that incumbered real property, conveyed subsequently in parcels to different grantees, must contribute proportionately to the discharge of the incumbrance, and not in the inverse order of alienation. Bates v. Ruddick, 2 Iowa, 423; Massie v. Wilson et al., 16 id. 390.

Whether the amount to be paid by each grantee shall be' proportionate to the value of the parcels at the date of the incumbrance, or at the time of the contribution, is an immaterial question in this case, since the commissioner finds that the. amount paid for the release of the mortgage upon the lots released was equal to their proportionate share upon their value, both at date of mortgage and time of payment.

The difficulty in this case seems to arise from the fact that several of the parcels or lots, which were sold under the mortgage foreclosure, did not sell for their proportionate share, whereby an undue proportion is left as a lien upon the lot of the defendant Myers. .But the failure o'f said lots to bring their full value at such sale, which, for aught that appears, was fair and regular in every particular, was, in no sense, the fault of the mortgagee or plaintiff. The presumption of law is, in such sales, that the property sold for its fair value at that- time. Th§re being nothing to disturb that presumption in this case, it must of course prevail. The lots which were released voluntarily by the mortgagee did pay their just and full proportion, and were rightfully released. Of their release the defendant Myers could not complain. The result whereby the lot of the defendant Myers has to pay an undue proportion, comes from circumstances surrounding the case, and not from the fault or wrongful conduct or act of the plaintiff. The plaintiff is entitled to the payment of his mortgage debt from the mortgaged property. If the mortgagors are solvent, such solvency will inure to the benefit of the defendant Myers, through the covenants of warranty. There seems to be no escape from the conclusion that the defendant’s lot must be subjected to the payment of the balance of the mortgage debt.

Reversed.