| Iowa | Apr 8, 1899
John and Elizabeth Kent, who were at one time the owners of the lots which are covered by plaintiff’s mortgage, mortgaged the same to H. G. Graaf to secure the sum of five hundred dollars. Thereafter, on the first day of June, 1894, they gave to plaintiff the mortgage in suit, to secure the payment of the sum of one thousand one hundred dollars. In December of the year 1895, Graaf began foreclosure proceedings upon his mortgage, making the Kents, plaintiff, and others defendants. He obtained a decree, and on March 14, 1896, the sheriff sold the lots to Graaf, who took the certificate of sale. June-30, 1896, the Kents conveyed the premises to one J. B. Chastain by warranty deed, which recited that the conveyance was subject to plaintiff’s mortgage. Thereafter, and on October 29, 1896, Chastain conveyed the lots to defendant N. B. Egbert. This conveyance was by quitclaim, which recited a consideration of one hundred dollars. January 9, 1897, either Egbert or his wife, S. J. Egbert, another of the defendants, paid Graaf the amount claimed by him under the certificate of sale, and Graaf assigned the same to S. J. Egbert. As no other or further redemption was made, the sheriff issued a deed to Mrs. Egbert on the fifteenth day of March, 1897. The deeds from the Kents to Chastain and from Chastain to Egbert were recorded at or about the time of their execution, and there is no doubt that both the Egberts had notice of the conditions in the deed from the Kents to Chastain. Instead, of redeeming from the sale, plaintiff commenced this suit to foreclose on March 15, 1897, and now' asks that it have judgment for the amount of its note, and a decree of foreclosure of the mortgage executed in the year 1894. The judgment
If it be true, as claimed by defendants, that S. J. Egbert purchased the sheriff's certificate of sale under which she received her deed, then there is no doubt that the decree as rendered by the trial court is correct; for plaintiff herein was made a party to the original forclo-sure suit, and it failed to redeem within the time allowed by law. And the same result follows if it be found that the assignment and transfer of the certificate to Mrs. Egbert was merely a redemption by her husband from the foreclosure sale, in virtue of his deed from Chastain, .unless it be true, as appellants claim, that the Egberts arc estopped from asserting a claim hostile to plaintiff's mortgage by reason of the statement in the deed from the Kents to Chastain that it was “subject” to plaintiff’s mortgage; and to this we will turn our attention, for It is the controlling question in tlie case.
This conveyance, as we have seen, was subject to plaintiff’s mortgage, not to plaintiff’s right to redemption in tho Graaf foreclosure. The grantee did not assume or agree to pay it, it is true, but the form of his agreement was such that the land stood subject to the payment of the plaintiff’s claim.’ Trust Co. v. Mowery, 67 Iowa, 113" court="Iowa" date_filed="1885-10-07" href="https://app.midpage.ai/document/iowa-loan--trust-co-v-mowery-7101697?utm_source=webapp" opinion_id="7101697">67 Iowa, 113. Chastain purchased nothing more than the equity of redemption from the Graff foreclosure, and he held that subject to plaintiff’s mortgage, which also gave it the right to redeem from the same "foreclosure. But he did not agree to pay the plaintiff’s mortgage, nor did he agree that it should always remain a lien upon the land, or that redemption might be made after the statutory period had expired. Notwithstanding the provision in the deed, plaintiff was required to keep its lien alive; and, if it suffered it to be extinguished by failure to make redemption, it cannot be heard- to say that it is still a lien upon the land, and that the land should be subjected to the payment of the note it was made to secure. As it failed to