194 Iowa 854 | Iowa | 1920
The fighting question in this case is the proper construction of a paragraph in a prior decree. Such paragraph was in part as follows:
“* * * be foreclosed and forever barred, and that plaintiff’s title thereto become and remain absolute and free from all liens and judgments which defendants, or any of them, have or had against said land, and that the same are junior and inferior to plaintiff’s title thereto, except that defendant Elizabeth Clai'ke shall have the period of one year from this day in which to redeem from the original sale hereunder, and that defendants Theodore Rudebeck, Mary Rudebeck, Burt I. Weld, Lemuel-Shipman, and Citizens Savings Bank shall have a period of nine months from this date, in which to redeem from said original decree. ’ ’
At the time this decree was entered, the court had under consideration two previous foreclosure decrees and two previous execution sales. The dispute concentrates upon the question as to which of these two previous sales was intended to be designated herein, by the words “original sale.” The plaintiff ap-pellee contends that the first sale in point of time was intended to be designated; and the defendant appellant contends that the second sale in point of time was intended to be designated.
The plaintiff is grantee of Elizabeth Clarke, and seeks to redeem, as the owner of the fee.
Prior t.o August, 1915, the-real estate involved herein was subject to a first mortgage of $7,500 in favor of Eighmey, and subject to a second mortgage of $3,000 in favor of Mary T. Clay, defendant herein. Theodore and Mary Rudebeck were mortgagors in each case. Subsequent to the execution of the mortgages, the Rudebecks conveyed to Weld, and Weld conveyed to James H. Clarke, the purchaser in each case assuming the mortgages. Clarke was the fee owner on August 27, 1915, on which date a foreclosure was begun on the Eighmey mortgage. The defendants upon whom service was had or appearance made in such suit were James H. Clarke and wife, Elizabeth Clarke, Mary T. Clay, and two junior lien holders, the German Savings Bank of Manning and the Citizens Savings Bank of Cedar Falls. A decree was entered in due form against all of them. The case
What was the effect of this decree upon the lien holder defendants? Manifestly, it cured the omissions of the original decrees respectively. The Rudebecks and Weld had been fully foreclosed by the Clay decree, but had not been foreclosed by the Eighmey decree. As to these defendants, the omission cured was in the Eighmey decree. As to them, therefore, the “original decree” was the Eighmey decree. As to the defendant lien holder* Citizens Savings Bank, it had been served and fully foreclosed by the Eighmey decree. It had not been foreclosed by the Clay decree. The omission as to it, therefore, which was cured by the supplemental decree was an omission in the Clay decree. As to it, the “original decree” was the Clay decree. As to the lien holder defendant Lemuel Shipman, he had not been foreclosed by either decree. The omission cured by the supplemental decree as to him, therefore, was in both decrees, and the supplemental decree was curative as to both of them. As to this defendant, therefore, the “original decree” meant both foreclosure decrees. As to the defendant Elizabeth Clarke, she was served and foreclosed in the Eighmey decree, but was not served or made a party in the Clay foreclosure, and was, therefore, not foreclosed by that decree. The effect of the supplemental decree, therefore, was to cure as to her an omission in the Clay foreclosure. Were it not for other features of the
But by the pleadings in the supplemental suit, she does not stand on a parity with the other defendants. On the face of the record, she was not a necessary party to the Clay foreclosure, in that the title to the land at the time the foreclosure was begun was in Duncanson, who conveyed^to Elizabeth Clarke on March 17, 1916. Mrs. Clarke appeared and pleaded in the supplemental proceeding’. She pleaded, in effect, that, though she had no title of record at the time of the beginning of the Clay foreclosure, she was in fact in possession of the land as owner, and had been so in possession for a long time previous. That the court found this fact in her favor is manifest from the provision made for her in the decree. By way of cross-bill, she further pleaded, in effect, that her statutory right of redemption had been impaired by the failure of the foreclosing plaintiffs in each case to serve and foreclose against junior lien holders. The theory suggested by her pleading and prayer was that she was entitled, under the statute, to three months after junior lien holders had exhausted their full rights of redemption, in order to utilize her right of redemption either by its exercise or by sale thereof. It is manifest, indeed, that while there were outstanding inferior lien holders whose right of redemption had not been foreclosed, the owner of the fee could not adequately utilize the statutory benefits provided for him. Whether Mrs. Clarke was entitled to any equitable relief on this account is a question upon which we intimate no opinion. What is evident from the record before us is that the trial court in the supplemental decree did aim to extend just such relief. Whether the decree was erroneous in that regard is beside the mark. It is no less valid on that account. An intelligent construction cannot be given to the decree upon any other theory. The court gave to the lien-holding defendants nine months, and gave to the defendant owner one year. This would give her three months to utilize her right of redemption after all lien holders had exhausted their rights of redemption. If this be a correct interpretation of the purpose of the decree, then it necessarily operated upon both of the original decrees. Each decree was made
It is true that the trial judge first adopted the construction of the supplemental decree contended for by the appellant defendant, and rendered decision accordingly, and that it was only after reconsideration and further argument that he reached
There is manifest, also, in the relief granted by the supplemental decree a certain morality which does not shock the conscience of the court, even though, on an appeal, it might have been found to be legally erroneous. Full relief could have been granted in one foreclosure suit to all the lien-holding creditors of the landowner. There was no real occasion for the Clay foreclosure. Mrs. Clay could have fully protected herself under the' Eighmey foreclosure and sale, either by redemption or by bidding. For the same reason, there was little occasion, also, for the third foreclosure or supplemental proceeding. When the Eighmey decree was entered, it provided for a continuance of the case as to the unserved defendants. All that was necessary at any time whatever was to serve the remaining defendants in the Eighmey ease, and take a supplemental decree therein. The multiplicity of suits and sales served little purpose, other than to churn the water and to obscure and becloud the title of the owner and the relative rights of junior lien holders, so that the right of the landowner to utilize the statutory method of redemption provided in his behalf was greatly impaired, in that he was able neither to use it nor to sell it. The result aimed at in the supplemental decree was not unconscionable. The same is true of the decree appealed from. It awarded to the mortgagee creditors, as represented now by the certificate holder under each sale, full recompense, with interest, and awarded to the landowner a fighting chance to save his land.
Some question has been made in argument as to whether the plaintiff was under any obligation to make redemption from both sales, or from the Eighmey sale alone. The plaintiff is in court with a tender of redemption from both sales. In affirming the case here, the plaintiff will be held to his tender, and will be required to redeem from both sales by payment of principal
I adhere to the views expressed by me in the former opinion of the court. See 180 N. W. 667.