| Iowa | Jun 21, 1864
This case involves the construction of section 3360 of the Revision, which declares: “That no goods, chattels, lands or tenements shall be sold, on execu
In our opinion the incumbrances are to be deducted from the two-thirds value, and as a consequence that the court below did not err in refusing the further credit. The theory of the statute is, that the amount bid, added to the prior incumbrances, shall realize to the debtor two-thirds of the fair value of his property. More than this, the creditor is not bound to pay. But if the plaintiff’s theory is correct, then it is but too manifest that he would realize not $2,000 (or two-thirds of the appraisement, $3,000), but $2,290.01. This result is reached thus:
Deducting the incumbrances, $869.75, from the appraisement, leaves,............................ $2,130 25
Two-thirds of this is,...................... 1,420 16
Add incumbrances,....................... 869 75
$2,290 91
Or, $290.91 more than two-thirds of the fair value of the property.
The creditor’s bid, however, being $1,130.25, if we add the incumbrances, $869.75, we have $2,000, or two-thirds of the fair value, as ascertained by due appraisement.
It must be remembered that the purchaser takes the property burdened with the prior liens. That it is bound in his hand not for two-thirds of the incumbrance thus resting upon it, but for the whole amount. And as he takes it thus incumbered and liable to pay the same, before acquiring a clear title, it would seem to follow under the statute that he should not be required to pay first and last, more than two-thirds of the appraisement. It is very clear that if execution had been issued in this case upon all the judgments, including those prior to the defendants,
The order sustaining the demurrer to the petition is
Affirmed.