66 Iowa 444 | Iowa | 1885
Lust had executed three mortgages upon the eighty, the first to one Paine, the second to one Taylor, and the third to the defendant Spillman. The jdaintiff became the owner and assignee of the Paine mortgage and the Taylor mortgage. He foreclosed the Paine mortgage, and bid in the property at execution sale. The defendant Synllman foreclosed his mortgage, and bid in the property at execution sale. Within a year from the plaintiff’s sale, Spillman deposited with the clerk of the court the amount necessary to redeem from the sale, and the plaintiff drew the money from the clerk’s hands. Afterwards Spillman procured the sheriff to execute to him a deed in pursuance of the plaintiff’s sale; and the question presented is as to whether such deed divested the Taylor mortgage, which is the mortgage the plaintiff is seeking to foreclose. The decree is not very explicit, but we understand that the court below held that' tlie'Taylor mortgage had been .divested by the deed.
Where a junior creditor redeems from an execution sale, he becomes entitled to an assignment of the certificate of purchase. Code, § 3120. If no redemption is made from him, he becomes entitled to a sheriff’s deed as the owner of' the certificate. Code, & 3124. But the defendant Spillman
The plaintiff insists that the lien, even if it had been held by Taylor when Spillman commenced his suit, could not be cut off in that way. Whether this is so or not, we need not determine. The plaintiff had become the owner of the Taylor note and mortgage before Spillman commenced his suit. Taylor had parted with his interest, and a decree against him could not, #under the circumstances, bind the plaintiff. It is true, the assignment does not appear to have been recorded, and Spillman contends that this fact was sufficient to justify Spillman in supposing that, in becoming a purchaser at his foreclosure sale, he was acquiring the land free from the Taylor mortgage, and that for ’this reason he has acquired a superior equity. But the fact appears to be that, while the plaintiff’s assignment was not recorded, the defendant Spillman had actual knowledge of it before he purchased, and even before he took a decree. Under such circumstances, we cannot think that the plaintiff’s rights became divested. Such, indeed, appears to have been the view of the court below. The plaintiff’s claim, in respect to forty acres of the mortgaged land, was sustained. Its decree in favor of the-defendant Spillman, in respect to the tract of eighty acres, must have been based upon the sheriff’s deed made to Spillman, under his redemption from the Paine mortgage debt. But it appears to us that Spillman’s claim cannot be sustained under either deed. Ilis claim in respect to the tract of forty acres rests upon one deed only — the deed made to him in pursuance of his own foreclosure.
It follows, from the views which we have expressed, that, on plaintiff’s appeal, the decree must be reversed, and, on the defendant’s appeal,
Affirmed.