50 Iowa 116 | Iowa | 1878
The answer of the defendant sets up a breach of this condition of the policy, averring that the title of the property was alienated by operation of law, and there was no assignment of the policy to the alienee. An issue was joined upoil this defense, The undisputed facts upon this branch of the ease are as follows:
The insured purchased an undivided one-half of the mill November 20, 1875. It was situated upon lots 1 and 16, block 4, railroad addition to the town of Hamburg. He assumed to discharge certain incumbrances upon the property as payment of the consideration of the purchase; among them, a mortgage executed by his grantor and his co-tenant, made prior to the purchase, to secure the payment of three thousand nine hundred and sixty dollars and fifty cents..
This mortgage described the lots upon which the mill was situated, as being in Phelps’ addition instead of the railroad addition. There was a decree of foreclosure rendered May 9,1876, directing the sale of the property under the description contained in the mortgage, and the mill was duly sold by that description, June 24, 1876, for four thousand, eight hundred and sixty-three dollars, subject to redemption in one year under the statute. On the 21st day of September, 1876, a proceeding was commenced to correct the misdescription of the property in the mortgage and the foreclosure proceedings; McKissick, the insured, being made a party. A proper decree was entered, making the correction, on the 4th day of October, 1877. A deed for the property, correctly describing it, was
The time for redemption under the sale upon the fore'closure of the mortgage had expired at the time of the destruction of the mill by fire. The court instructed the jury that “the evidence does not show such an alienation of the property at the time of the loss as to defeat a recovery.”
' The insured, as we have said, was made a party to the proceedings to correct the description of the property, and the •relief asked was that the correction be made, and a deed be issued on the sheriff’s certificate .correctly describing the-property, and that MeKissick’s interest be subject to the foreclosure and sale. He did not in the court below, and does not in this court, claim that he holds any other than the statutory right of redemption.
In view of his appearance to the action to correct the mistake in the mortgage proceeding, and to authorize the execution of a deed upon the sale, we think if he had any right of redemption other than that based upon the statute, and existing by reason of his not having been made a party to the original foreclosure action, he waived it by not setting it up in his answer made before the loss. His rights are the same as though he had been made a party in the original foreclosure case. This the counsel for plaintiff directly admit in argument.
But it is insisted by counsel that McKissick’s right of redemption was not cut off by the sale, within the time prescribed by the statute, for the reason that, on account of the incorrect description, the mill was not covered by the mortgage, decree, sale, etc. Just here is their mistake. The parties, in all their transactions — in the mortgage and in the agreement of McKissick to pay it, and the court in the decree, and the sheriff in the sale — all acted upon and with regard to the-property in question. It was covered by the mortgage, the decree and the sale, as between the parties interested and Mc-Kissick. It was the property contemplated by all, and was
We reach the conclusion that the instruction given to the jury, above quoted, was erroneous, as the property had been alienated before its destruction by fire.
Other questions discussed by counsel need not be considered, as the conclusion we reach makes a final disposition of the ease.
Reversed.