Knowles v. Rablin, 20 Iowa 101

Knowles v. Rablin

20 Iowa 101 | Iowa | 1865

Cole, J.

1. notice: as penaens. It may well be conceded, that Smarr, by his action to foreclose the mortgage, given to secure the note assigned to him and the two other notes, did gjye construo{ive legal notice to Rablin and the world of his interest in the mortgage premises. Such action was sufficient to charge third persons with notice under our statute. See Rev., § 2842.

2. Pouf.gagee. Smarr, not being made a party to the foreclosure suit by Rablin, was not prejudiced by the judgment in that case, so as to bar his right to redeem as junior mortgagee. The plaintiff, by his purchase at the foreclosure sale, acquired, and in equity will be subrogated to, the rights of Smarr.

s. mortdemption. The question then arises, what are the rights and equities of a junior mortgagee of real property, as against the senior mortgagee thereof ? We answer: He has, beyond question, the right of redemption, but he has this right, subject to the limitations and restrictions *104recognized and enforced in connection therewith, in courts of equity. It will be seen by reference to the averments of the petition, that the plaintiff asks and seeks to redeem, only an undivided half of the real estate mortgaged to and purchased at the sale by the defendant, Eablin, upon the payment of one-half of such purchase price. One of the limitations upon the right of redemption of mortgaged property, is, that a purchaser of a part of the mortgaged property cannot redeem without paying the whole debt. This question has been two or three times decided by this court. See Street v. Beal and Hyatt, 16 Iowa, 68, and authorities cited; Massie v. Wilson et al., 16 Iowa, 390, and authorities.

Another limitation upon the right of redemption from a mortgage, is, that the person seeking to redeem must pay, not only the amount bid by the mortgagee at the foreclosure sale, but must pay the whole mortgage debt. This point has also been decided by this court after elaborate argument and thorough examination, and it was held that the rule in equity in this particular, had not been changed by our statute. See Johnson v. Harmon, 19 Iowa, 58, and authorities cited. In case the redemption is so made, the party redeeming will be subrogated to all the rights of such senior mortgagee. The plaintiff not having tendered a sufficient amount to entitle him to redeem, nor offered to pay whatever sum might be found due, or to pay any other sum than the amount so tendered, did not show himself entitled to any relief. There was no error, therefore, in sustaining the demurrer.

4. decree: ^ MUef!“' In making up the judgment entry after the order dismissing the plaintiff’s petition, and that defendants recover their costs, it is added “ and their title to said premises in controversy be forever quieted against the plaintiff and all parties claiming under him.’’ There is no foundation in the pleading for this affirmative relief *105to the defendants, arfd that part of the judgment entry ■should be erased. With this modification, the judgment uf .the District Court is, at the costs of the appellant,

Affirmed.