Lowe v. Grinnan
19 Iowa 193
Iowa
1865
Check Treatment
Wright, Ch. J.

While counsel have occupied a wide field in the discussion of this case, in our view the, determination of one question settles the entire controversy, and renders the examination of all others quite immaterial.

In the petition it is suggested that the dеed of trust to Lomax from Day was defectively acknowledged, and hence that the recording of the same did not impаrt constructive notice of the lien thereby created. No defect is pointed out or specified, however, еither in the pleadings or argument. No copy of the instrument is attached. The allegation is denied by the answer, and it is very manifеst that the alleged defect is not relied upon, but that ‍​​‌‌‌‌​‌‌‌‌​​‌‌​​‌‌‌‌​‌‌‌​​‌‌‌‌​​​‌​‌​‌​​‌​‌​‌‌‌‍the plaintiff’s case stands, and is claimed to stand, upon other and different grounds. It may be added that any claim for relief upon this ground was probably abandoned in view of the curative statute оf 1858 (art. 5, ch. 95, § 2249, Rev.), which went into effect after the date of the trust deed and before the making of plaintiff’s mortgage. Howevеr this may be, the point is not pressed, nor does there seem to be any foundation for it.

i. deed oe xeiiof' There is no suggestion that the sale by thе trustee was not regular, nor otherwise than in strict accordance with the terms of the power contained in the deеd. The petition only alleges, on this- subject, that *197the “ sale was made without the intervention of judicial proceedings or order, and without petitioner or any other creditor being made a party thereto.” If plaintiff is concluded by such a sale, in view of all he alleges against it, then it seems to us he has no right to redeem, and that, as. against defendants, his case is at аn end. And upon this subject there is no room for ‍​​‌‌‌‌​‌‌‌‌​​‌‌​​‌‌‌‌​‌‌‌​​‌‌‌‌​​​‌​‌​‌​​‌​‌​‌‌‌‍controversy. The right of Day to redeem, continued until the sale by the trustee, but not аfterwards. And a valid sale under this prior deed, cut off plaintiff’s right as a subsequent mortgagee. In the absence of a statute giving the right to redeem after sale, or some extrinsic equity, this is the well established rule, to which, as far as we know, there are no exceptions. Cook et al. v. Dillon et al., 9 Iowa, 407; Doolittle v. Lewis, 7 Johns. Ch., 45; Demorest v. Wynkoop, 3 Id., 129; Chase v. Parker, 14 Iowa, 207; Turner v. Johnson, 10 Ohio, 204; Brisbane v. Stoughton, 17 Id., 482; Bank v. Guttschlick, 14 Pet., 19. The case of Newman v. Samuels, 17 Iowa, 528, contains nothing in conflict with the foregoing views.

In this State there is no statute giving the right, and it only remains to inquire whether there are any extrinsic equities which entitle рlaintiff to interfere with defendant’s title. As we have already seen, there is no suggestion of fraud, of irregularity in the sale, or any оther matter in connection with said proceedings, tending to invalidate defendant’s title, or to create an equity in favоr of plaintiff. Notice, as provided by the deed, was notice to plaintiff as a subsequent mortgagee, and he was bound thеreby. He took his mortgage with knowledge of this contract, with knowledge that the trust deed could be thus foreclosed, and was bound to take notice of the sale made in accordance therewith. Being thus affected, has he any equity based uрon the federal legislation or the principles of international law, which will avail him against defendants? It seems to us most сlearly not.

*198_rebeI liou- _ no It will be remembered that the sale was made by the trustee in November, 1859, before the commencement of thе rebellion. At this time, then, there is question but that the Grinnans could take a good title. They were then indisputably citizens, owing and giving allegiance to the government. By their answer they deny that they have done anything to forfeit their right to this property to the government, even under the provisions of the sixth subdivision of section 5, of chapter 95 of the acts of Congress. (Laws 1862, p. 814.) But assuming, that by some rulе of the international law, property thus situated might be confiscated by the government, and that by the same rule the sale tо Cowse would be void,mot admitting, however, by any means, that such rules are applicable to those residing in the disloyal Statеs during the' struggle now so happily terminated, we do not see how plaintiff can claim the benefit thereof. As to him, this propеrty was lost before the ‍​​‌‌‌‌​‌‌‌‌​​‌‌​​‌‌‌‌​‌‌‌​​‌‌‌‌​​​‌​‌​‌​​‌​‌​‌‌‌‍commencement of the struggle. He asks to redeem. To redeem from what? and'for what reason or upon what grounds? From a valid sale, made at a time when there was no impediment resulting from the act of congress or otherwise, and to persons competent to take and hold the same. Suppose the government might declare the property confiscated either in the hands of Cowse or his grantors, what right has plaintiff to claim the same right, under the рretext of redemption? If the government does not act — if the President does not cause the seizure, the title remains in the purchasers or their grantee, under the trust deed. It thus remains precisely as though it had been obtained years before thе rebellion, directly by patent from the government, and plaintiff might as well seek to interfere with some other property, belonging to some other person domiciled in the rebellious states, as with this. True, he had a mortgage on this, but he suffered it to be sоld by a *199valid proceeding tinder an incumbrance paramount to his. To allow him to have the benefit of a sort of qui iam confiscatory proceeding to redeem instead of paying anything, and in the face of and against a valid ‍​​‌‌‌‌​‌‌‌‌​​‌‌​​‌‌‌‌​‌‌‌​​‌‌‌‌​​​‌​‌​‌​​‌​‌​‌‌‌‍sale, would certainly be unprecedented. In view of the nature of plaintiff’s petition, the status of the purchasers under the trustee salе for loyalty or disloyalty, their residence within the so called confederate lines can make no difference. ' If he has no right to relief, it is immaterial that defendant’s property might be liable to some other proceeding. And it is equally immatеrial whether Cowse, or any other person, has since purchased the property. For though such sale under the act of congress should be ever so invalid, plaintiff is in no position to question the same; and this objection meeting us upon the thrеshold of the case, we need not go beyond it. Thus concluding, it of course follows that the demurrer to the answer was prоperly overruled; that there was no necessity for the appointment of a receiver, and that he should have bеen discharged. The former order is affirmed, and the latter reversed, at plaintiff’s costs.

Lowe, J. — Being interested, took no part ‍​​‌‌‌‌​‌‌‌‌​​‌‌​​‌‌‌‌​‌‌‌​​‌‌‌‌​​​‌​‌​‌​​‌​‌​‌‌‌‍in the consideration of this case.