77 Iowa 347 | Iowa | 1889
I. It is claimed in behalf of appellants that the plaintiffs did not prove that the lumber was furnished upon a contract, as alleged, and that the
II. The defendant A. L. Harvey is the holder of a purchase-money mortgage upon the lots upon which the barn is situated, and the court held that his lien was prior and superior to the lien of the plaintiffs upon the lots, and that plaintiffs’ claim was the paramount lien on the barn. A special execution was ordered for the sale of the barn, and it was further ordered that, if said Harvey failed to redeem from the sheriff’s sale, within one year, the purchaser of the barn might remove the same from the lots within thirty days thereafter. After-wards the decree was modified as to the manner of sale, by directing that the sheriff’s sale, as between the plaintiffs and the defendants Curtis & Curtis, should be the same as the sale of personal property, and that the sheriff should give a bill of sale to the purchaser, and place the purchaser in possession of the same, but that the barn should not be removed from the lots until the expiration of the year in which Harvey was entitled to redeem. Harvey does not complain of the decree. The defendants Curtis & Curtis claim that under the decree they are deprived of the right of redemption provided .by law in case of the sale of real estate. It is provided by section 2135 of the Revised Code (sec. 9, ch. 100, Laws of 1876), that “if such material was furnished or labor performed in the erection or construction of an original and independent building, erection or other improvement, commenced since the attaching or execution of such prior lien, encumbrance or mortgage, the court may, in its discretion, order and direct such building, erection or improvement to be separately sold
It is further claimed that the decree is erroneous, in that it authorizes the sheriff; to put the purchaser in possession of the barn without removing it, and thus deprives appellants of the possession of the lots during the period of redemption allowed to Harvey. We do not think appellants can complain of this part of the decree. The only interference with the possession of the lot is of that part upon which the building stands. This was probably a concession to Harvey, who is the holder of the prior lien on the lots. As between him and the appellants, the barn was real estate. In view of all the facts of the case, we think that part of the decree which provides for possession by the purchaser is equitable and just. It does not appear that appellants will be prejudiced thereby.
Affirmed.