| Iowa | Jan 6, 1863
The mortgage for the foreclosure of which this proceeding was commenced was upon several lots in the city of Dubuque.
Tbe Court in its decree directed all the property therein described to be sold, and after paying the amount due tbe
The first point made by the counsel is, that the Court erred in making the sale absolute. This error is well assigned. The statute provides, that “ if anything be found due the plaintiff, the Court shall render judgment therefor, and must direct the mortgaged premises, or so much thereof as is necessary to be sold to satisfy the amount due, with interests and costs. A special execution shall issue accordingly,” § 3661, Rev. of 1860, 2084, Code of 1851. The statute evidently contemplates a conditional order of sale. The decree in this case is absolute.
It is claimed in argument by counsel for appellee,' that the respondents could not be prejudiced by this character of a decree, as it is made the duty of the officers to sell only so much of the mortgaged premises as is necessary to satisfy the debt, §§ 3267 and 3268, Rev. 1860.
Also, that under the provisions of § 3319, the defendant in the execution may at any time before sale deliver to the officer a plan of the division of the land levied on, and it' is there made the duty of the officer to sell according to such plan so much of the land as may be necessary to satisfy the debt and costs, and no more.
These ¡provisions, we think, apply in sales under a general execution. When the decree of the Court is absolute and directs certain property to be sold, the execution defendant cannot divide his property and substitute other property in the place of that ordered to be sold, nor can . exercise any power to select or discriminate; the mandate of the Court is imperative and he has only to obey.
It is next objected that the decree directs the sheriff to make to the purchaser at such sale an absolute deed, and thereby denies to the respondents the equity of redemption provided for' in chapter 103, Laws of 1860, page 873, Revision. This act provides that “in all cases when-judg
The argument against the validity of such laws, repeated in so many decisions, is familiar to the legal mind. It is useless, at this time, to undertake to refer in detail to the reported cases in which this que'stion has been so thoroughly discussed. Counsel for appellant raise the question but do not ask us to listen to a suggestion from them in favor of -their position. We only add that in our opinion this act 'pf the Legislature in so far as it affects contracts made prior to its passage is invalid.
We think there is no distinction in principle between this act and the appraisement law, which was held invalid as to contracts made prior to the passage of said act, in the case of Rosier v. Hale, 10 Iowa, 470" court="Iowa" date_filed="1860-06-29" href="https://app.midpage.ai/document/rosier-v-hale-7092030?utm_source=webapp" opinion_id="7092030">10 Iowa, 470. Upon the decision of the case, and following the cases there cited, as also the cases of Scoby v. Gibson, decided in the Supreme Court of Indiana, Am. Law Reg., Feb., 1862; and Howard v. Bug-
■ The last point made is, that the Court erred in declaring the judgment in favor of the State for the use of the school fund a lien upon the mortgaged premises.
Intervening judgment creditors or subsequent purchasers might complain of this special lien, but we cannot see wherein it prejudices the right of respondent.
A general judgment or a general lien credited thereby would have the same effect as a special one so far as respondents are concerned.
The decree will be so modified in this Court as to conform to this opinion in relation to the order of sale; in other respects it is affirmed.
Affirmed at the costs of appellee.