178 Iowa 834 | Iowa | 1916
The first contention of the defendant is that the redemption was made by the judgment defendant, and that the conveyance to the plaintiff is only colorful; that the defendant’s money was used in maMng the redemption. The evidence does not support this contention, but creates a suspicion at most.
The next contention is that, conceding that she paid him $1 for the deed, and that the deed conveyed the title to her, and she thereafter made redemption, yet the proceeding was'a fraud upon the rights of this intervener. Was.it? Plaintiff paid $1 more for this property than Heft Bros, were willing to pay, When Heft Bros, caused this property to be sold under the first execution, and bid it in, they fixed the amount they were willing to allow on their judgment for tMs property. If they thought the property was worth more than the amount bid, as they now contend, the opportunity was then open to them to bid and take the property. At that time, the property belonged' to the judgment defendant. After the sale on execution, the judgment defendant, D. I. Nichols, had one year in which to redeem from that sale. He could redeem by paying to the clerk the
Of course, if Nichols had redeemed within the year, the Hefts might have had execution and levied on the land for the deficiency, because, upon redemption, Nichols would become reinvested with the title to the land. "When Nichols sold the land to the plaintiff, the plaintiff acquired the right of redemption — the same right of redemption that Nichols had. She paid to Heft Bros, the amount of their bid, the amount for which it was sold and bid in by'them. They are in no position to complain, and say that her action was a fraud upon them. She has paid to them the full amount that they were willing to allow for the land when they sold it on execution. When she redeemed, the title was in her. Therefore, the deficiency judgment did not become a lien upon the land. It was not then Nichols’ land.
This question has been before this court in several cases, • and it has been held that, if the execution creditor failed to bid for the land sold a just amount, the debtor should be permitted to transfer his interest to another for a fair consideration, or such consideration as is satisfactory to him, and, if his grantee redeem, the execution creditor has no right to complain, for he might have bid a larger sum for the land; and it is said that, if the judgment creditor, when he issues execution and sells the land of his debtor, is not
It is true that the entire amount of the original judgment was a lien upon the land at the time the first execution was issued. The judgment creditor might have bid the full amount of his judgment, if he deemed the land of sufficient value, and then the redemption could not be made except upon repayment of the full amount of the judgment. But when he allows it to be sold on-execution for less than the amount of the judgment, when he has a right to bid the full amount of his judgment, or a larger sum than that for which it is sold, he cannot complain if, during the year for redemption, the judgment creditor conveys his interest in the land to another, and the other redeems by paying the amount thus conceded by the judgment creditor to be the amount that he is willing to put into the land. He concedes this to be the amount by his bid, or by allowing another to take the land for an amount less than the full amount of the judgment.
If the land is bid in by a third person, even though it be for much less than the value of the land, and much less than the judgment resting upon the land, no redemption being made, the buyer takes the title divested of any lien for the unsatisfied portion of the judgment. No possible prejudice can result to a judgment creditor in allowing the debtor to convey the land to another for a consideration satisfactory to himself during the year of redemption, though the right of redemption passes with the sale. .Redemption can be made whether the sale be made to a stranger or to the judgment creditor, and in either case the amount necessary to redeem would be the amount for which the land was sold.
When the judgment creditor bids, it in, he fixes the amount which he is willing to allow upon his judgment for the land. The amount fixed may be the full value of the land, or it may be less than the full value of the land; but
In Clayton v. Ellis, supra, it is said:
"Tie (meaning the execution creditor) is always in the condition to bid the fair value of the property, if it does not exceed the amount of his claim. If he bids less than the value and less than his claim, it is in view of the contingency of its not being redeemed, and the advantage resulting therefrom.”
It is further said in that case:
"It should be conclusively presumed, for the purpose of redemption, that the purchaser bid therefor all that the property was worth to him.”
See, also, Hardin v. White, 63 Iowa 633; Harms v. Palmer, 73 Iowa 446.
We hold, therefore, that the sale of this property on the first execution' exhausted the lien of TIeft Bros.’ judgment; that they had no lien for any deficiency in their
There being no judgment lien upon the land at the time plaintiff made' the redemption, the payment by her of the amount for which the land was sold was a full payment of all claims the interveners, Heft Bros., had against the land at that time. They acquired no lien against the land thereafter because of the sale by the judgment debtor to the plaintiff, evidenced by the quitclaim deed. It follows, therefore, that this second execution could not reach this land for two reasons: First. When the second execution was issued, Heft Bros, had no judgment lien upon the land. That had been exhausted by the sale. Second. When the second execution issued and was levied, the property was not the property of the judgment debtor.
The action of the court, therefore, in enjoining the sheriff