126 Iowa 254 | Iowa | 1904
Defendant Midland Blast Furnace Company held a mortgage upon ■ the property in question, executed by the then owner, John Gaffney. This mortgage
Plaintiff has not, of course, effected a statutory redemp
Under our authorities, it must be conceded that the holder of a sheriff’s certificate of sale under a mortgage foreclosure is not entitled to the possession of the property, nor ha’s he any title to the lands covered thereby. At most he has nothing more than a lien, or perhaps an inchoate or conditional right to an estate. The mortgagor and his grantee hold the legal title until divested by a sheriff’s deed. In other words the mortgagor’s title is not extinguished until that time. He or his grantee had until the sale under the foreclosure decree, an equitable right of redemption, and after the sale under that decree a statutory right of redemption. Either of these rights will be recognized, enforced and protected by a court of equity. See, as supporting these views, Greenlee v. Mercantile Ins. Co., 102 Iowa, 421; Varnum v. Winslow, 106 Iowa, 287, and cases cited.
It is also true that, under our holdings, a right of redemption is said to be statutory, and must be exercised in the manner pointed out by statute. Case v. Fry, 91 Iowa, 138; Williams v. Dickerson, 66 Iowa, 106; Lombard v. Gregory, 90 Iowa, 684. Although it has also been held that, as to a junior lienholder, not made a party to a mortgage foreclosure, he has an equitable right of redemption, independent of the statutory one, which may be exei’eised
Which of these,principles is to govern here? Has a mortgagor, or his grantee, whose property has been sold at foreclosure sale, no remedy against a certificate holder who takes possession of and despoils the property during the year for redemption, but to, make statutory redemption, and thereafter to bring suit against the despoiler to recover the damages done to the estate? Appellees’ copnsel answer these interrogatories in the affirmative, and ask us to so hold. While there is much to be said in favor of his position, we do not think that equity is impotent under such circumstance. Had plaintiff allowed the statutory period of redemption to expire without taking any action to secure the fruits thereof, he would, of course, be without remedy, for the title to the land would have passed from him through the sheriff’s deed. But in this case the action was brought ■ before the expiration of the statutory period. It is for an accounting, and to determine the amount plaintiff should pay in order to secure the relinquishment of the lien held by the Midland Blast Furnace Company. D'oubtless plaintiff might have made statutory redemption without waiving his right to recover damages done the estate by the certificate holder, but the pivotal question here is, was he bound to do so, under the facts conceded by the demurrer ? When a' mortgagee takes possession of land, he is ordinarily compelled to account for the rents and profits arising therefrom, and the mortgagor may bring an action for an accounting, and to establish the amount he should pay in order to discharge the lien of the mortgage. The holder of a certificate of purchase during the statutory period of redemption has little, if anything, more than a lien upon the property,
Appellee practically concedes that if plaintiff had paid, the amount invested by the certificate holder, although not in strict conformity to the redemption statutes, he would be entitled to maintain this suit. But he says there was no payment here, and therefore a court of equity has no 'jurisdiction. He is right, of course, in saying that there has been no payment, as we ordinarily understand that term. But is that fact determinative of the question of the jurisdiction of a court of equity? We think not. The reason why he might maintain the action in the one case, and not in the other, is not plain. Indeed, we think that in either case he may resort to a court of chancery for relief. ■ In the one case he has voluntarily parted with his money for the purpose of extinguishing the lien, while in the other the property, or a part of it, covered by the lien, has been taken without his consent and converted to the use of the lienholder-. It is no hardship on the lienholder to say that he must account for what he has received from the property while he held merely a lien thereon, and that it is an idle ceremony to require the mortgagor or his grantee to pay over his money, and then to bring suit to recover the same back again. One of the purposes of equity is to avoid and prevent a multiplicity of suits, and to hinder circuity of action.
So far as we can discover, this exact question has never ' before been raised in this State, although we have decisions which, to our minds, in principle, sustain the right of action. Thus, in Bitzer v. Becke, 120 Iowa, 66, plaintiff, a landowner, was permitted to make redemption from a tax sale ' in an equitable action to determine the amount of taxes which might properly be assessed and levied against his land. In that case the power of a court of equity to effectu-até justice in the redemption of lands from tax sale •was-
Tt must be remembered that this action was commenced before the statutory period of redemption had expired, and that plaintiff offered to pay whatever amount it should be adjudged on an accounting was due the certificate holder. It may be that a sale under foreclosure cuts off the equity of redemption of the mortgagor, and that his rights thereafter are statutory; yet it does not follow that equity will not grant relief, and refuse to call the certificate holder to an accounting. Such holder has no right to the possession of the property until the expiration of the statutory period of redemption. Tf he takes possession without the assent of the redemptioner, receives the rents and profits, or converts the property, or some part thereof, to his own use, we think
But «for the error pointed out in the first division of