Douglass v. Bishop

27 Iowa 214 | Iowa | 1869

Beck, J.

l. mobtsage : panfesTreemption. I. The demurrer raises, in fact, but three objections to the petition. The first relates to the validity the foreclosure proceeding. It is insisted, that, as shown by the petition, the decree of foreclosure and sale thereunder are void, and therefore the proceeding to redeem, resulting in a compromise, was unnecessary, and defendant cannot be charged with the amount expended for that purpose.

The foreclosure of a mortgage, in an action against the mortgagor alone, where a part of the land covered by the mortgage has been conveyed and the purchaser is not made a party to the proceeding, is not void. The purchaser of such part of the land holds the equity of redemption therein which has not been cut oif by the foreclosure, and nothing more; and the purchaser under the decree acquires a perfect title, subject to this equity of redemption, which may be enforced by action brought by the one holding it after-the foreclosure and sale. Street v. Beal & Hyatt, 16 Iowa, 68; Heimstreet v. Winnie, 10 id. 430; Bates v. Ruddick, 2 id. 427.

_puroRammtfreaeom the whole. In such case the purchaser of a part must redeem the whole; of the land mortgaged, and upon payment of the whole of the debt secured by the mortgage. Street v. Beal & Hyatt, supra; Johnson v. Harmon, 19 Iowa, 57.

The view taken in defendant’s demurrer, which was adopted by the court, that the foreclosure sale was void, is erroneous. Plaintiffs, in order to hold the title to the land, were required to redeem, and the proceeding for that purpose was properly instituted. They were authorized to make a just and proper compromise whereby their rights were preserved.

3. pbactice: matter. II. The other assignments of errors relate to the agreement between Wasson and Bishop, as set out in the petition. Admitting that the objections are well taken, Bishop is liable, notwithstanding, as an obligor upon the bond. But the averments concerning this agreement, if objectionable at all, are, at most, irrelevant or redundant, and should have been assailed by motion. Rev. § 2916.

The demurrer should have been overruled, and the judgment of the District Court is therefore

Reversed.