82 Iowa 353 | Iowa | 1891
The case involves the construction of chapter 117 of the Acts of the Twenty-first General
We may now inquire how the act in question affects the law as thus stated. It provides “that personal property, not exempt from execution, hereafter mortgaged, * * * may be taken on attachment or execution issued at the suit of a creditor of a mortgagor ; but before the property is so taken the officer or plaintiff must pay or tender to the holder of the mortgage the amount of the mortgage debt, and interest accrued, or must deposit the amount thereof with the clerk” for the holder of the mortgage. By this proceeding the creditor obtains a lien on the property, which before could not be done.
We should now inquire if the remedy so provided is exclusive. Does it so operate as to exclude the creditor from the proceeding by garnishment, and a remedy through the personal liability of the garnishee? If so, the effect of the statute is to repeal or set aside a well-xecognized law of the estate, and one having its foundation in statutory enactments. If both may stand in harmony with the legislative will, it should be allowed. The language of the act does not indicate a purpose to change the law, but to add a remedy by which creditors may obtain a lien on the property, and exhaust a
Upon the record, there'should be a judgment for the garnishees, who are the appellants herein, for the property, and denying to the plaintiff its prayer for foreclosure and a sale. Reversed.