230 N.W. 415 | Iowa | 1930
Plaintiff's application under Section 11792 was denied, on appeal to this court. Northwestern Mut. Life
1. MORTGAGES: Ins. Co. v. Hansen,
By agreement of the parties in the proceedings now before us, it was ordered that the suit in equity and the petition for new trial be "consolidated for the purpose of trial." The two proceedings were accordingly tried together. Decree was entered "for the dismissal of the cause as against the Cerro Gordo State Bank," and that:
"Mabel Meibergen is entitled to receive four fifths of the amount that was deposited by plaintiffs with the clerk, and the clerk was directed to pay said amount to her; that plaintiffs were entitled to have the other one fifth of said deposit returned to them, and the clerk was directed to return said deposit to *1355 them. It was further decreed that the minor plaintiffs were exonerated from any further payment, and that the defendants and all persons claiming by, through, or under them have no interest in the southwest quarter of Section 16-97-22, Cerro Gordo County, Iowa; that the minor plaintiffs are the absolute and unqualified owners thereof; and that the title thereto was fully quieted in them. Under the record, the Cerro Gordo State Bank is not interested in the case, and the case was dismissed as to them * * *."
Whether or not separate decrees were entered in the two proceedings does not appear, but no point in that respect is made.
Defendant contends that:
"The rights of the appellee to make redemption were conclusively adjudicated * * * and determined, as set out in the opinion of the Supreme Court in the case entitled NorthwesternMutual Life Insurance Company v. Hansen et al.,
The decision in
Defendant argues that, by proceeding to make redemption under the statute, plaintiff conclusively elected his remedy. But it was held in the former case that plaintiff had no remedy under the statute. Hence there could be and was no 2. ELECTION OF election of remedies. Courtney v. Courtney, 149 REMEDIES: Iowa 645. Section 11792 and Chapter 500, Code, acts not 1924, of which it is a part, are designed, and constitu- they provide, merely for the right, time, place, ting. and method of making statutory redemption from an execution sale as between the purchaser at execution sale, on the one hand, and junior lien holders and the debtor, on the other, and also as between redeeming lien holders, on the one hand, and the debtor or owner, on the other, and as between the lien holders themselves. As to redemption creditors, the statute assumes the relationship of debtor and "creditor whose claim becomes a lien prior to the expiration of the time allowed for such redemption." Section 11776. The Cerro Gordo State Bank and the appellant, Mabel Meibergen, were not creditors of the deceased owner of the 160 acres or of her minor heirs. They never had any lien upon the land of the decedent while she was living, or upon the two-thirds interest of her children after her death. Whether they had a lien upon the one-third interest of the surviving husband, James P. Hansen, is a question that goes merely to the amount required to be paid by the minor heirs in exonerating the 160 acres. Appellant raises no question that the judgments were liens on the one-third interest of the surviving husband, James P. Hansen, at the time of the conveyance by him of his interest to the minors, or that the court allowed to her an inadequate amount. The contention of the appellant is, therefore, reduced to this: That, by means of foreclosure of a mortgage and execution sale thereunder of mortgaged premises consisting of different tracts owned by the mortgagors in severally, and sale of the mortgaged premises en masse, and redemption by lien creditors of one of the mortgagors by virtue of liens existing only on that part of the mortgaged premises owned by the judgment debtor in severalty, such judgment liens are so extended as to attach to that part of the mortgaged premises in which the judgment debtor never had any interest. In other *1357 words, that, by force of the statute intended only to grant and regulate right of redemption from execution sale, an owner of one of several tracts of land sold en masse at special execution sale to pay the common incumbrance on all must, after redemption by lien creditors of the owner of the other mortgaged tracts, in order to pay off the common incumbrance, before sheriff's deed is due, pay, not only the entire common lien upon his own and the co-owners' land, but the particular liens upon the lands of the co-owners under which redemption is made, and for which the owner attempting to make payment of his own part of the debt is in no wise responsible. The proposition is a startling one.
Decedent obtained the 160 acres "from her people," and apparently her husband never had any interest in it, further than his inchoate, and afterwards consummate, distributive share, or "dower." He acquired 80 acres of his own. He became indebted, and the two tracts, the 160 and the 80, were together mortgaged, and the proceeds of the mortgage "used to pay my [his] own personal debts." Defendants obtained judgment against him for his debts. Decedent's minor heirs are only claiming an apportionment of the mortgage debt between the decedent's 160 acres and the husband's separate 80 acres. We therefore pass the question whether, as between the decedent, on the one hand, and her husband, James P. Hansen, and his creditors, on the other, she or her heirs had the right to have his 80 acres first exhausted for the payment of the mortgage. Decedent, and after her death her heirs, had the right, on paying the entire mortgage debt, to contribution from the owner of the 80 for the amount for which his land, as between them, was, in equity, primarily liable. 42 Corpus Juris 453. As between them, the primary obligation as to the husband's proportion of the mortgage debt was upon him. Decedent, on making full payment, was entitled to keep the lien of the mortgage alive, and enforce contributions and exoneration. 3 Pomeroy's Equity Jurisprudence, Section 1221 et seq.; 1 Idem, Sections 407, 411; Ferry v. Miller,
STEVENS, De GRAFF, ALBERT, and WAGNER, JJ., concur.
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