47 Iowa 565 | Iowa | 1877
From the allegations of the answer it appears that Barrett became the purchaser of the mortgaged property, by a quit-claim deed filed for record 'March 19, 1873. On the 17th of February, 1871, the mortgagee procured a judgment of foreclosure in an action to which Barrett was not a party. On the 25th day of July, 1871, the property was sold under the foreclosure, and the defendant became the purchaser. As the decree of foreciostarwSifrehüered alter me uoae of 1873 took effect, the sale must have been conducted under the provisions of the Code, without appraisement and subject to redemption. Babcock v. Gurney, 12 Iowa, 154; Fonda v. Clark, 13 Id., 300. Section 3102 of the Code provides that: “The defendant may redeem real property at any time within one year from the day of sale as herein provided, and will in the mean time be entitled to the possession of the property.” Section 3321 of the Code provides: “When a mortgage or deed of trust is foreclosed by equitable proceedings, the court shall render judgment for the entire amount found to be due, and must direct the mortgaged property, or so much thereof as is necessary, to be sold to satisfy the same with interest and costs. A special execution shall issue accordingly, and the sale thereunder shall be subject to redemption, as in cases of sale under general execution.” Under the provisions of these sections we have no doubt that the purchaser at a foreclosure sale is not entitled to the possession of the premises until after the expiration of the year for redemption. A much more difficult -question arises as to the right of defendant to posses
The purchaser from the mortgagor being thus subrogated to all the rights of tbe mortgagor, it follows that, until foreclosure and sale, and the expiration of the year for redemption, he has tflg-nijaht-ln Iho m.MseiDJlOil Of thé faortyywl propagó and is^ntitled to the rents and profits. The plaintiff purchased the mortgagéd preffuses and filed his deed for record, before the foreclosure proceedings were had under which defendant claims he acquired a right to the possession. This purchase vested in plaintiff the legal title, and the right to possession; subject to the lien of the mortgage. Certainly, up to the time of the foreclosure proceeding, plaintiff was entitled to the possession of the property. To the foreclosure proceeding the plaintiff was not a party; he is, therefore, in no way affected
In the last ease Mr. Chief Justice Field, announcing the opinion of the court, said: “'To give validity to such decree, the owner must be before the court when it is rendered. No rights which he possesses can otherwise be affected, and any direction for their sale would be unavailing for any purpose. A mortgagor, when he has not disposed of his interest, is a necessary party to a suit for foreclosure and sale under our law, even though no personal claim be asserted against him. The fact that a mortgage is executed upon the premises does not, of itself, authorize proceedings for their sale without making him a party. He has a right to be heard before his estate can be subjected to sale to satisfy any alleged lien, -without reference to any personal claim against himself. If he has parted with the estate his grantee stands in his shoes, and possesses the same right to contest the lien and to object to the sale. The object of the sale is to subject such estate as the mortgagor held at the time to the satisfaction of the lien which he created; and if that estate has been disposed of a decree directing its sale without the presence of its owner would be a mere arbitrary act, condemning without hearing one man’s property to pay another man’s debt. It is only when the owner of the estate has had his day in court, that a valid decree can pass for its sale. It is only under a decree of this nature that a purchaser can acquire any title.”
In Haffley v. Maier, 13 Cal., 13, it was held that the vendee of the mortgagor cannot be ousted from possession by a purchaser under the decree of foreclosure, unless such vendee was made a party to the foreclosure proceedings. But we are not now called upon to determine what would, at law, have been the rights of Barrett, if the purchaser at the foreclosure sale had not instituted any proceeding to foreclose his interests. After the sale, on the second day of February, 1875, the defendant commenced his action against Barrett, for the foreclosure
We think ■ the demurrer to the answer should have been overruled.
Reversed.