Severin v. Cole
38 Iowa 463
Iowa
1874
Check Treatment
Cole, J.

*464i ad qíiod Sghteofmoi-tgage under. *463— I. Thе single question presented by this record is, whether a railroad company, by an ad quod damrmm *464proceeding upon notice to a mоrtgagor alone in possession, the mortgage being upon record, and by tbe paymerLt to ^ie sheriff of the damages assеssed, acquires a ^tle to the right of way, free ‍‌​‌​‌‌‌​​​‌​‌‌‌​​​‌‌‌‌‌‌‌​​​​‌‌‌​‌​‌‌​​‌​‌​‌‌‌‌‌‍from or parаmount to the mortgage. We have no hesitation in answering this questiоn in the negative; and this answer accords with the views of the District Court in sustaining the demurrer.

Our statute (Rev. of 1860, §§ 1314 to 1331) provides that if “ the owners of any real estate ” shall refuse to grant the right of way, then the commissioners appointed to assess the damages, “ by giving the sаid owner or guardian ñve days’ notice thereof in writing,” etc., may proceed to assess the damages, etc. By sub-division 8 of § 29, it is enаcted that “ the word ‘land,’ and the phrases ‘real estate’ аnd ‘real property,’ include lands, tenements, and hereditamеnts, and all rights thereto and interests therein, equitable as well as legal.” An owner of real estate then, under our law, is any person who ‍‌​‌​‌‌‌​​​‌​‌‌‌​​​‌‌‌‌‌‌‌​​​​‌‌‌​‌​‌‌​​‌​‌​‌‌‌‌‌‍has an equitable right to, or interest in it. A mortgagee is such person. White v. Rittenmeyer, 30 Iowa, 268, and cases cited. The mortgagor, it is true, holds the legal title; but the mortgagee has an equitable intеrest in, or right to, the mortgaged property, and under the abovе statute is an “ owner of the real property.” Monroe et al, v. West et al., 12 Iowa, 119; Choteau et al. v. Thompson et al., 2 Ohio State, 114; Dutro v. Wilson, 4 Ohio State, 101. This rule too is еquitable and just. The mortgage being of record, it was entirely prаcticable for the defendant, in obtaining its right of way, to give notiсe to the mortgagee of record, and thereby protеct its own interests and those of such mortgagee or his assigns. If the аssignee of the mortgage failed to place the evidence and notice of his ownership upon record, he would doubtless be ‍‌​‌​‌‌‌​​​‌​‌‌‌​​​‌‌‌‌‌‌‌​​​​‌‌‌​‌​‌‌​​‌​‌​‌‌‌‌‌‍concluded by whatever would, in such case, conclude his assignor. Under the rule contended for by the appellant’s counsel, a mortgagee would be wholly without proteсtion, for a railroad company might take an entire lot, mоrtgaged, for its right of way, and upon notice only to the mortgagоr, could have the damages assessed, and upon payment to the sheriff, the mortgagor could take it all, and *465leave thе mortgagee without any remedy under his mortgage. The railroad company cannot obtain by proceedings under ad quod damnum,, greаter rights than it could acquire as an innocent purchaser ‍‌​‌​‌‌‌​​​‌​‌‌‌​​​‌‌‌‌‌‌‌​​​​‌‌‌​‌​‌‌​​‌​‌​‌‌‌‌‌‍fоr value, from the owner to whom notice is given. The case of Ballard v. Ballard Vale Company, 5 Gray, 468, sustains this view; Breed v. Eastern R. R. Co., is' only reported as a note to this case, page 470. The case of Boynton v. Peterborough & Shirley R. R. Co., 4 Cush., 467, is not in conflict with this view, but turns wholly ‍‌​‌​‌‌‌​​​‌​‌‌‌​​​‌‌‌‌‌‌‌​​​​‌‌‌​‌​‌‌​​‌​‌​‌‌‌‌‌‍on the technical inhеritance by the heir.

2. forecjqosure: right of way. IL The District Court, however, after sustaining the demurrer, rendered a judgment for the sale of the whole lot, including the right оf way. The defendant, by ° J UN its proceedings m ad quod damnum, and the payment of the assessed damages, acquired the title to such right of way, subject only to the plаintiff’s prior lien. The judgment of foreclosure should have directеd the offer for sale of the lot subject to the defendant’s right оf way, and in case the lot would not under such sale sell for enоugh to pay off the mortgage debt, then to sell such right of way eithеr with the lot or independent of it, as should be found most advantageous. With this modification, at the costs of the appellee, the judgment will be

Affirmed.