121 Iowa 492 | Iowa | 1903
The essential facts are not in dispute, and may be stated as follows: Defendant W. I. Luse was he owner of certain lands in Van Burén county, which-
It is the contention of counsel for appellant that the sale of the right of redemption carried with it the right of possession; that is, that the sale of the redemption right, was, in legal effect, a sale of.the possessory right also, and. this notwithstanding the latter right was not, in terms,, included in the levy and sale. . The equity of redemption from the lien of the Irish mortgage was cut off when the-foreclosure sale took place. Thereafter Luse had only the-statutory right to redeem. By section 4045 of the Code it, is provided that “the debtor may redeem real property (from execution sale) at any time within one year from the day of sale, and will, in the meantime, be entitled to> the possession thereof,” etc. Here is given the right to-redeem and the right to continue in possession. Speaking-in general terms, the right of redemption and the right of possession are separate or independent rights, the one not-being necessarily involved in the other; that is, there may be a right of redemption independent of any right of possession, and vice versa. It is the contention of counsel for appellant, however, that, inasmuch as the statute-alone confers the right, we must resort to the terms and provisions thereof to determine the nature and character of such right; and in this we may agree. But counsel say, in effect, that a reference to the language of the-statute makes it manifest that the right of possession was. not intended to be a separate or independent right, but,
With the contention thus made we are unable to agree. True, the right of possession ceases if there be an absence of the right to redeem — that is, if the sale be absolute — - and to that extent the right of possession may be said to be in a sense dependent in character. Before the equity of redemption was foreclosed and cut off, there was the common-law right of possession. Now, it is the effect of the statute — and this is the meaning of the language employed — to give a further right of redemption of one year, and to provide that, wherever such right of redemption exists, the right of possession shall continue until the end of the redemption period. In other words, as to possession the statute provides for the extension or continuation of a right .theretofore enjoyed, rather than the creation of a right having no previous existence. Where the sale is absolute, there the right of possession ceases,- and this is because a right of possession is essential to an absolute title. So far the statute does no more than to declare the common-law rule. But where title has not yet become absolute, and is liable to be deféated entirely (as by payment in redemption), there is no reason why possession may not be withheld until the expiration of the period within which the title is held in abeyance; and this, we
The judgment of the court below was right, and it is _AEEIRMED,