71 Iowa 392 | Iowa | 1887
The defendant Seal filed a cross-petition ashing for the foreclosure of her mortgage. The court granted a decree of foreclosure, and directed that the property be sold upon execution. The plaintiff insists that the court should have allowed the building for which the lumber was furnished to be sold and removed, and the proceeds to be applied first in payment of his debt. The statute upon which he relies may be found in Miller’s Code, 577, and is as follows: “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.,' incumbrance or mortgage, the court may, in its discretion, order and direct such building, erection or improvement to be separately sold under execution, and the purchaser may remove the same within such reasonable time as the court may fix.”
The case seems to have been submitted upon a stipulation as to the facts. That part of the stipulation upon which the plaintiff relies, to show his right to a sale and removal of the house, is as follows: “After the execution and filing of said mortgage, the defendant Azza Brown (the owner of the land) purchased of Miller & Jackson, lumber merchants, certain material with which to erect an independent structure upon the first described property, which said structure consists of a dwelling-house securely builded upon a stone foundation, and covering a cellar suitable for its purpose; said house being so fastened upon and to the realty as to constitute a fixture thereupon.”
It is evident that a sale and removal of a building would often, if not ordinarily, result in a sacrifice of property.
Whether there should have been a decree that, upon the sale of the property, there.should be an apportionment and distribution of the proceeds between the plaintiff aiid mortgagee, is a question upon which there might be some doubt, if we could regard the question as an open one. But we do not think that we can. It appears to us to have been settled in German Bank v. Scholth, 59 Iowa, 316, and Curtis v. Broadwell, 66 Id., 662. The construction adopted in those cases is assailed; but where the different parts of a statute, like the one in question, are inconsistent with each other, no ruling can be made that will not be open to objection. • The court evidently attempted to follow the ruling in those cases, and we think that the judgment must be
Affirmed.