67 Iowa 31 | Iowa | 1885
There is no controversy as to the facts. Plaintiff’s mortgage covers two hundred and forty acres of land, forty acres of which is the homestead of the mortgagors. Defendant’s mortgage is junior to plaintiff’s, and it covers all of the land covered by plaintiff’s, except the homestead. The question is as to the extent of the interest which defendant is entitled to have assigned to him upon the payment by
If the language of this section is to be taken literally, defendant’s claim could not well be denied. However, in determining what rights accrue under it on the pi’esent state of facts, it should be construed in connection with such other legislation as may relate to the same subject-matter. The manifest object of the section is to secure to the junior lien-holder the right to protect his lien by buying in the paramount incumbrance, and it should be so construed, if possible, as to effectuate that object. If the junior lien attaches to but a portion of the property covered by the senior mortgage, and all portions of it are subject to be sold alike for the satisfaction of the debt secured by that mortgage, the junior lienholder would undoubtedly be entitled, under the statute, upon the payment of the amount of the debt, to an assignment of all the interest of the holder of the mortgage. For in that case he would have the right, first, to apply the portion of the property covered by the senior mortgage alone to the satiafaction of the debt secured by that mortgage, and afterwards to appropriate the property covered by the junior lien, or the portion of it remaining after the satisfaction of the debt secured by the senior mortgage, to the satisfaction of the debt secured by that lien. But in this case, the portion of the property to which the junior lien did not attach is the homestead of the mortgagors, and it can be sold under the senior mortgage only to supply the deficiency remaining;
We think, therefore, that the district court did not err in refusing to direct plaintiff to assign to him her interest in the homestead. The judgment, however, denies him any relief. Tie is-, clearly entitled, if he shall elect to accept it, to an assignment of the interest of plaintiff in the property other than the homestead, and the judgment will be so modified as to secure that right to him. In the view we have taken of the rights of the parties under the statutes quoted above, it is unnecessary to determine whether there was a release by plaintiff of the mortgage on the homestead. But the costs of the appeal will be taxed to the appellant.
Modified and Affirmed.