154 Iowa 380 | Iowa | 1912
On May 16, 1906, the defendant Pechen
But it is contended that this right has been lost because of the subsequent redemption of the land by the defendants as owners for value without notice. Undoubtedly the plaintiff might have obtained relief in his action to foreclose the second mortgage had he prayed therefor in a supplemental petition, and probably he might have bid enough at the sale to include the interest paid on the first mortgage, or have effected redemption by virtue of such interest payment, and thereby have added the same to the amount the holder of the third mortgage must have paid to effect redemption. Stephens v. Mitchell, 103 Iowa, 65. But he pursued none of the courses mentioned, and upon the redemption from the sheriff’s sale any claim to subrogation he might have had became latent, and may not bo enforced against bona, fide purchasers. Such a lien will not be kept alive to the prejudice of purchasers of the land for value and without notice. Persons v. Sheffer, 65 Cal. 79 (3 Pac. 94); Ahern v. Freeman, 46 Minn. 156 (48 N. W. 677, 24 Am. St. Rep. 206); Raymond v. Whitehouse, 119 Iowa, 132. The defendants in redeeming, paid value, and the only issue in controversy is whether this was done without notice. They were without notice other than that imparted by the record. That disclosed that plaintiff’s mortgage had been foreclosed, and that his interest in the lien had been entirely divested by the redemption effected by Holbrook & Bro. from the sheriff’s sale. Defendants then had the right to assume that plaintiff retained no lien on the property, and that in redeeming from Holbrook & Bro. they acquired the property subject to the lien of the first mortgage only. The record indicated that Ordway, the mortgagee therein, still retained this mortgage, and, had inquiry been made of him, it must be assumed that he would have disclosed the amount of principal and in