2 Iowa 423 | Iowa | 1856
In determining this case, we shall confine ourselves to the objections urged to the decree rendered by the court below. And in the first place, complainant claims that the decree foreclosing the mortgage, the sheriff’s sale, and the deed made thereon, are void as to him. It is conceded by defendants, that the sale and deed convey no title, and were properly set aside, from the fact that the execution under which the sheriff acted, had no seal.
The only question in this- part of the case, then, relates to the validity of the decree of foreclosure against complainant. No objection was made by defendants below, or here, to the
Then, was there any such mistake in this decree of foreclosure, as should have been corrected? We think there was. Granting that complainant was only bound to contribute bis proper proportion, and not to pay the whole of the mortgage (of which we shall speak hereafter), yet he was only boiind to pay his proportion of what was actually owing. And, therefore, while the holder of the mortgage and the mortgagor, might include the sum of $54.36, for interest paid for money borrowed, to purchase the same, and attorney’s fees, yet it was manifestly improper to require complainant to pay any part thereof, before he could hold his property divested of the mortgage lien. When he purchased, he had notice of this mortgage, and the mortgagee, by virtue of bis prior lien, bad tbe right to subject tbe property to tbe payment of bis debt. But he had no right to subject it to the payment of any sum that the mortgagor might con
Complainant further insists, that he should not have been required to pay any portion of the costs attending the foreclosure of the mortgage. We see no reason why he should not pay his portion of the costs, up to the time of the decree. These costs were legitimately made in enforcing a lien upon property, which he had purchased, and which he might have avoided, by making payment before suit brought. The costs subsequent to the decree, he should not pay, however. The sale was set aside for an irregularity, for which he should not be responsible, and to avoid the effect of which, was one object of this bill. It would be manifestly inequitable, to require him to pay any portion of costs which accrued under a void writ, which he in no manner procured.
And, finally, it is insisted, that complainant should only have been required to pay two-thirds of this incumbrance, in proportion to the quantity that he purchased, instead of three-fourths, or in proportion to its value. In this respect, we think the decree is correct. Here was a mortgage on three distinct parcels of real estate. Subsequent to the lien, one party purchases one parcel, and another two. When required to contribute, shall it be in proportion to the quantity or palu& of the premises, by them respectively purchased.We clearly think in proportion to the value. The other position, has no one equitable consideration to sustain it, while the rule followed by the court below, is fully sustained by reason, as well as authority. It would be an unconscionable doctrine, that would require A. who bought a ten acre tract, of no more value than the one acre that B. might purchase, to pay in such cases, ten times as much as B. The value of the several parcels, is what is presumed to have governed the mortgagee in taking this mortgage, and by this value, should the respective liabilities of the purchasers be measured. This view is sustained by the following, among other, authorities: Story’s Eq. Jur. §§ 477, 478, 483; Al
Indeed, upon this subject, we do not think there can be found any conflict — the authorities uniformly holding that value, and not quantity, should be the measure of contribution. Whether that value is to be determined with reference to the time of the mortgage, or subsequently, we are-not called upon now to determine, as no such question is raised. We may say, however, that such value is in no case to be affected by improvements made by either purchaser.
But the defendants (Coffmdaffer and Griffey) insist that complainant, having made his purchase after theirs, should be required to pay the whole incumbrance, or at least, that the lots purchased by him, should be sold, before they should be called upon to pay any part of the mortgage debt. On this subject, we are aware that the authorities are conflicting ; and in this state the question has never, so far as we are aware, been decided. At one time, in New York, it was held, that such purchasers were bound to contribute in proportion to the value of their respective purchases. Cheesebrough v. Willard et al., 1 John. Ch. 403; Stevens v. Cooper, Ib. 425. But these cases were regarded as shaken by the subsequent one of Gill v. Lyon et al., Ib. 446, and still later, in the case of Clowes v. Dickenson, 5 Ib. 235, to have been entirely overruled. See, also, James v. Hubbard, 1 Paige, 228; Gouverneur v. Lynch, 2 Ib. 300; Guion v. Knapp, 6 Ib. 35. So that the rule in New York, now is, that the property purchased, is liable in the inverse order of its alienation. Such is the doctrine in Maine, South Carolina, and some other states. In Massachusetts, Ohio, Kentucky, and Tennessee, and other courts, it is held that the subsequent purchasers, shall contribute in proportion to the value of their respective estates, such value not to be appreciated, however, by any improvements placed thereon by the purchaser. Parkman v. Welch, 19 Pickg. 241; Green v. Ranage, 18 Ohio, 428; Dickey v. Thompson, 8 B. Monroe, 312; Jobe v. O'Brien, 2 Humph. 34; see, also, Story’s Eq. Jur. § 1233,
The debtor is not inhibited from making a further sale, by reason of the covenants in his first deed. This power to sell, is as well known to the first purchaser, as any other fact connected with the transaction. It is the inability of the debtor to pay his debt, that creates the necessity for enforcing the lien, and not any failure on the part of the last purchaser! The junior, as well as the senior, purchaser, makes an absolute purchase; each pay a full consideration, and have a like reason to suppose, that the mortgage debt will be paid, and their estates held alike divested of the incumbrance. While each has purchased absolutely, yet, if the mortgage should not be discharged, they acquire no more than the right to redeem the parcel held by each, and neither should complain, if, by the decree which settles their respective rights, &c., he is secured the equity thus acquired, upon equal terms. We therefore conclude, that the decree of the court below was correct, in charging the purchasers with the payment^ of the mortgage debt, in proportion to the respective values of each parcel.
But as complainant should not have been charged with any part of the sum of $54.36, included in the decree of foreclosure, nor yet with the costs attending the mortgage sale, the decree will be so far reversed, and in every other respect affirmed.
A procedendo will issue, directing a decree to be entered, in accordance with this opinion.