Kilmer v. Gallaher

116 Iowa 666 | Iowa | 1902

Waterman, J. — I.

1 The option given plaintiff in the opinion rendered by this court (107 Iowa, 676) was to be determined by him in a new decree, which we think it was contemplated' should be entered. ITis action, therefore, in taking a deed, and instituting proceedings to oust defendants from the premises in dispute, while ill-advised, did not amount to an election on his part to have the sale stand. The opinion there recites that the case is remanded for further proceedings. No further proceedings were necessary, if the option was determinable alone by plaintiff’s acts, and he desired the sale to stand. Another reason for giving this construction to the opinion is that it was important the rights of the parties should be preserved of record, and this could not be done, save by a new decree.

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3 II. Error is charged in the action of the trial court in rendering judgment on installments of the debt which were not due when the original action was begun, or judgment therein rendered. By the terms of the first decree the cause was continued after judgment was rendered on the installment of the debt then due, for the purpose of giving judgment on the other installments as they matured. This provision was not changed on appeal. There was therfore no error in proceeding in the main action as was done. It is charged, however, that the subsequent judgments were rendered without notice to defendants. The decree recites that defendants appeared by attorneys, and this recital is not questioned, save by mere assertion. An appearance is a waiver of notice. Corn Exchange Bank v. Applegate, 97 Iowa, 67; Childs v. Limback, 30 Iowa, 398, and cases therein cited.

4 III. Another objection to the judgment for the last installment mentioned is that it was rendered before the maturity of that portion of the debt, because the three days of grace had not expired. This indebtedness was evidenced by a bond. Grace is allowed only on negotiable paper. Code, section 3051.

5 IV. Finally it is claimed the court erred in barring defendants’ right of redemption, because they had taken an appeal in the original action. The provision of the Code upon which the court manifestly rested this portion of the decree is section 4045, which, after giving to the debtor a right of redemption of real estate sold on execution, concludes with this language: “But no party who has taken an appeal from the superior or district court, or stayed execution on the judgment shall be entitled to redeem.” This cannot mean that one who has appealed .from a provision in a decree which bars his right of redemption, and who is successful in securing such right in this court, cannot avail himself of it after he has obtained it. To give the statute that construction is to hold, practically, that m> right of appeal lies from that part of a decree which bars the equity of redemption. A defendant would be placed in rather an unfortunate position, under plaintiff’s construction, where a trial court erroneously bars his right of redemption. If he submits to the decree, of course, his right is lost. If he appeals, and the right is awarded him, he is forbidden by statute to exercise it. In our opinion, the statute is founded upon the doctrine of waiver. It is intended to say no more than that one who can redeem, and does not do so, but appeals solely to establish defenses to the action, waives his right of redemption by pursuing such course. In .this case defendants were practically denied all right of redemption by the decree from which they appealed. To redeem from the sale, they not only had to pay the amount bid by the creditor, but all the other installments of the debt which would fall due in the future, for the sale was subject to the lien of such installments. They were, obliged to appeal in order to secure a statutory right. They were successful. We think they may now exercise it. The case of Lombard v. Gregory, 90 Iowa, 682, cited by appellee, involved no such question as the one before us. Another thought in this connection is that the decree, as it now stands, includes two judgments for installments which were not included in the former appeal. However, if plaintiff’s construction of the statute is correct, the present appeal will bar any right of redemption from the sale under these judgments and the provision in the decree which we have been considering would be without prejudice.

We have said enough to make plain the reasons for the conclusion we reach. The decree was erroneous in cutting off the right of redemption. If a sale has already taken place, it may be we should fix a short period within which such right should be exercised. The facts as to this matter are not fully before us, and we leave it to be settled in the new decree which must be prepared. As thus modified, the conclusions of the trial court will be affirmed.