Grapengether v. Fejervary
9 Iowa 163
Iowa
1859
Check Treatment
Stockton, J.

The decree setting aside the sale of E. lot 17, made by the sheriff under the foreclosure of Eejervary *172was authorized by the facts shown in the record. The proceeding instituted by Eejervary was to foreclose his mortgage by notice and sale by the sheriff, under the statute, for the non-payment of two notes for one hundred dollars each, due respectively January 3d, and July 3d, 1855. The sheriff should have sold only so much of the mortgaged premises as might be sufficient to pay these notes with interest and costs. [Code, Sec. 2091.) Instead of this he sells the east half of lot 17, with the house and improvements thereon, for six hundred dollars. It is not shown whether or not the half lot sold was susceptible of sub-division so that a portion of the same — enough to pay the debt — might have been sold. But it is shown that lot eighteen was unimproved, and might have been sold in parcels; and there is no sufficient reason why it should not have been first offered for sale, if the half lot was incapable of being divided. The sheriff was requested to sell lot eighteen first; and a purchaser was present ready to bid for it at least the amount of the debt. Upon the promise of the mortgagee to indemnify him against any liability therefor, he refused to offer lot eighteen for sale, and sold the E. of lot seventeen, for three times the amount of the debt. Eorthis conduct of the sheriff, there was neither apology nor excuse; and it furnishes good reason for holding the sale made by him null and void. Unless the directions oí the statute are substantially complied with, the sale is invalid, and the sheriff’s deed will be set aside on the application of the party interested.

The defendants, Lawes & Blaltemore, surviving partners &c., were entitled to be subrogated to all the rights of Ee-jervary under his mortgage; and so much of the amount paid by Arndt for the half lot, at the sale made by the sheriff', as the said mortgage will not reimburse to them with interest, the said partners are entitled to recover the same from said Leonard, Eejervary and Zierdt, and the decree of the District Court in this respect is affirmed.

The counsel have argued at some length the question whether any title passed to Jannsen under the deed from *173Zierdt and wife. The question is not as to the proper execution of the deed. The deed is properly executed, and the authorities cited to that point are irrelevant. The question to be decided is whether the fee simple estate of the wife passed by the deed. By our statute it is provided that a married woman may convey her interest in real estate in the same manner as other persons. Code, sec. 1207. If the husband and wife join in a conveyance of the wife’s estate, no private examination of the wife is necessary to render valid the execution of the deed. If the deed in this instance had stopped with the covenant of warranty by the husband, there could be no question but that the whole estate of the wife had passed to the grantee. What then is the effect of the subsequent and concluding clause in which the wife relinquishes her right of dower in the premises ? Without these words of relinquishment the deed answered for the purpose of conveying any estate vested in the wife, whether in dower or an inheritance in fee simple. It is in the usual form by which the interest of the wife in lands, of whatever kind, is conveyed. There is nothing, it is true, in the language of the proceeding part of the deed to distinguish whether a feo simple, or a dower estate was intended to be conveyed. But the conclusion is not legitimate from this fact, that the concluding words in which the wife agrees to relinquish her right of dower, were addded by her to limit the estate conveyed to a dower interest only. She had in the granting part of, the deed, conveyed all her interest in the premises, and she had no dower right to convey or relinquish.

At common law a married woman could not, by uniting with her husband in a conveyance, bar herself of any estate of which she was seized in her own right; and where by statute a mode is prescribed in which she may execute a conveyance of her land, — as that the husband shall join with her in the deed, — if the directions of the statute are not complied with, the deed, as at common law, is inoperative and void as to her. It will not be treated even as an imperfect conveyance, or an agreement to convey; nor will *174a mistake in tbe deed of a married woman be rectified as against her. Martin v. Dwelly, 6 Wend. 9 ; Carr v. Williams, 10 Ohio, 105.

Under the Code of Iowa, the property of the wife is to be regarded as her separate estate, which she may herself control, and her contracts in rotation to which are binding without the assent of the husband. The fact that he joined with her in the conveyance in this instance and covenants himself to warrant and defend the title, does not render it less a deed of the wife; and we can only regard the words of the deed upon which the question is made, as something added, which cannot be understood as qualifying what has gone before, or limiting the interest conveyed, but as altogether superoga-tory.

After the payment of the Eejervary mortgage, the parties were entitled to liens on the premises in the order following: The defendant Cutting to the first lien on lot eighteen for the payment of his claim of $393. The complainant, as the assignee of his mother and guardain, is entitled to a lien upon the whole premises for the unpaid purchase money; the notes in his hands for $900, due May 1,1855, and for- $400 due April 1, 1856, to be paid first; and the note for $700, in the hands of the defendant Foot, to be last paid.

The defendant Hansen was a purchaser with notice that the purchase money due from Jannsen to Zeirdt was unpaid; and although lot eighteen was not included in the mortgage, the lien for the unpaid purchase money extended to this lot as well as to the half of lot seventeen. The order in which the parties are to redeem from each other was correctly fixed by the decree, as well as the disposition of the proceeds on the sale, should there be no redemption, and in this respect, as in others, the decree is affirmed.

Judgment affirmed.