Newell v. Pennick

62 Iowa 123 | Iowa | 1883

Seevers, J.

In 1878, one Scott and wife executed a mortgage on real estate, wbicb was duly foreclosed, and a special execution issued, under and by virtue of wbicb tbe plaintiff, on tbe twenty-second day of October, 1881, became tbe purchaser of tbe real estate, subject to tbe right of redemption.

In 1879, one Brown recovered a judgment against Scott, wbicb was a lien on tbe real estate, junior to that of tbe mortgage.

Brown was not -made a party in tbe action brought to foreclose tbe mortgage. On tbe twenty-third day of October, 1882, the defendant, Pennick, was the owner of the Brown judgment, and on that day sought to make statutory redemption from the plaintiff by paying the required amount of money to the clerk. The sheriff recognized such right, and conveyed the premises to Pennick.

On the twenty-seventh day of October, 1882, the plaintiff presented bis certificate of purchase to the sheriff and demanded. a deed, which he refused to execute, because of the redemption by and conveyance to Pennick, as above stated. On the same day the plaintiff tendered to Pennick the amount due on the Brown judgment, and paid the same to the clerk for his use.

This action was brought to set aside the conveyance to Pennick, to set aside the redemption proceedings, and compel the sheriff to execute a conveyance to the plaintiff. The relief asked by the plaintiff was granted, but Pennick was allowed to recover the money paid the clerk on the Brown judgment.

The important question discussed by counsel is, whether Pennick had the right to make statutory redemption at the time he did. The appellant, in support of such right, cites Code, § 3321; Jones v. Hartsock, 42 Iowa, 147; Wright v. Howell, 35 Id., 288; Montgomery v. Chadwick, 7 Id., 114; Ten Eyck v. Casad, 15 Id., 524; and Johnson v. Harmon, 19 Id., 56.

We understand that the right of a junior lien-holder, not made a party to the foreclosure of a mortgage, to make statutory redemption therefrom within nine months after a sale of the premises under the foreclosure proceeding, is conceded. It is only his right to do so after that period which is denied, and this position was affirmed by the court.

None of the cases above cited have reference to statutory redemption. But some or all of them hold that a junior lien-holder, not made a party to the foreclosure proceeding, may redeem in equity after the statutory period has expired.

Section 3321 of the Code simply declares that the right to make redemption from the foreclosure of a mortgage, and a sale thereunder, exists, and-may be exercised in the same manner as sales of real estate under general execution on judgments at law.

Statutory redemption must be made, it is obvious, within the time and in the manner prescribed by statute. The defendant in execution may redeem within one year from the sale. This right for the first six months is exclusive, but if he fails to exercise such right, then any creditor may redeem at any time after six and within nine months after the sale. Unless the defendant in execution redeems within twelve months after the sale, the purchaser is entitled to a conveyance. Code, § § 3102 and 3103.

There is no provision of the statute which authorizes a creditor or lien holder to redeem after the expiration of nine months from the sale of the real estate. As the defendant did not make redemption until after that period had expired, what he did was without legal force or effect, and the court correctly set aside the same, and the conveyance based thereon. The right, however, of Pennick to make redemption in equity existed, and if this proceeding is regarded as a proper exercise of such right, then the plaintiff in equity could redeem from him. This the plaintiff in substance did by paying the amount of the judgment on which Pennick’s right is based.

Affirmed.