79 Iowa 383 | Iowa | 1889
Lead Opinion
II. On its face the judgment as modified is erroneous. By the terms of the' mortgage, lot 9 was pledged as security for but one thousand dollars of the indebtedness, whereas by the judgment it is directed to be sold
Reversed.
Rehearing
OPINION ON REHEARING.
Lot 5, under this mortgage, is held in security for the payment of all the notes. Lot 9 is held as security for the payment of the first one. It is the case of two separate tracts of land or lots, held for the payment of a debt. We need not inquire here, in the view we take of the case, as to the manner of enforcing the lien of the mortgage upon the lots, and whether lot 5 must be first sold, and proceeds applied to the first note, and whether lot 9 can be sold only for a balance remaining unpaid after the sale of lot 5. The mortgagor sold lot 9 to Tomlinson. Now, it is a well-settled rule that when a mortgagor sells and conveys a part of the mortgaged property, and retains the ownership of a part, upon foreclosure of the mortgage, the part he continues to own shall be first sold, and the part conveyed by him shall, in the hands of his grantee, or those claiming ■ under him, be subject to sale only to satisfy any balance remaining after the sale of the property held by the mortgagor. Massie v. Wilson, 16 Iowa, 390; Bates v. Ruddick, 2 Iowa, 423. This rule is based upon obvious equities!