Lamb v. Feeley, 71 Iowa 742

Lamb v. Feeley

71 Iowa 742 | Iowa | 1886

Rothrock, J.

2.--:---: redemption ¿y junior mortgagee: claims extinguished. 1. Mortgage; foreclosure sale: redemption: what amounts to. Some question is raised in argument of counsel as to whether the plaintiff, in purchasing the certificate of sale under the senior mortgage, made a redemption under the statute; but we think the . . . . , ,, transaction amounted to, and actually was, a redemption. It has been decided that such a redemption, made after six and prior to nine months from the sale, can be made between the parties without the aid of the clerk. Goode v. Cummings, 35 Iowa, 67. The parties in this case did just what was in law necessary to effect the redemption of a junior mortgage, and the plaintiff, in addition, declared by affidavit that it was intended as such. The plaintiff, then, was a redemptioner within nine months subsequent to the sale, and was entitled to a deed, unless the defendant jn the foreclosure proceedings should redeem within the year allowed him. He did not redeem, an¿ the plaintiff received a deed for the premises, and his rights are clearly defined by the following provision of the Code:

“ Sec. 3113. Unless the defendant thus redeems, the purchaser, or the creditor who has last redeemed prior to the expiration of nine months aforesaid, will hold the property absolutely.

“ Sec. 3114. In case it is thus held by a redeeming creditor, his lien, and the claim out of which it arose, will be held to be extinguished,' unless he pursues the course pointed out in the next section.

*744“ Sec. 3115. If he is unwilling to hold the property, and credit the defendant therefor with.the amount of his lien, he must, within ten days after the expiration of nine months aforesaid, enter on the sale-book the utmost he is thus willing to credit on his claim.”

The plaintiff made his redemption prior to nine months, and failed to file the notice required by section 3115, and, having become the absolute owner of the land as provided in section 3113, his mortgage, which he now seeks to foreclose, and the debt on which it was based, were extinguished, according to section 3111. Therefore, he had no right to recover, and the court below erred in sustaining the demurrer to the answer; for, if the allegations of the answer are sustained by the proof, the plaintiff must fail. The case of Goode v. Cummings, supra, sustains this position.

Peversed.