53 Iowa 24 | Iowa | 1881
The decision of the court below is, we understand, based upon the fact that the defendants in the judgment whereon the land was sold had caused execution to be stayed by S. G. Franks becoming surety, the court holding that the stay deprived the creditors and the surety, as well as the defendant in execution, of the right of redemption. This decision presents the only question arising in the case which we are called upon to decide. ¥e proceed to its consideration.
II. The sale of real estate upon execution and all proceedings and rights arising thereon are prescribed by statute. Such proceedings were unknown to the common law. The right of redemption after sales upon execution, either by defendants in execution or holders of liens upon the land, would not exist unless provided for by statute. The legislature may prescribe what parties may redeem, and under what circumstances the right shall exist and may be exercised. It is entirely competent for the statute to deny the right under circumstances that maybe prescribed in the exercise of legislative wisdom.
Code, section 3102, confers the right of redemption upon the execution defendant, to be exercised within one year from the day of sale. But it provides that in case he has taken an appeal in the action, or has caused the execution on the judgment to be stayed, such right cannot be exercised. Sections 310T-3120 provide that creditors of the execution defendant holding liens upon the land sold may redeem and prescribe rules for the exercise of the right conferred. But there are no restrictions upon the right, as in the case of the execution debtor, to the effect that it shall not be exercised in ease an
We reach the conclusion that the lien holders entitled to redeem are not defeated of the right by an appeal or stay of execution taken by the execution denfendant. The plaintiff had the right to redeem as the execution creditor of S. G. Franks, whose land was sold on execution Whether the surety in the stay of execution is deprived of the right of redemption we need not inquire. He is not seeking to redeem, and plaintiff does not claim the right under him; it.is secured to her as a lion holder, and without regard to the rights of others.
In our judgment the District Court erred in sustaining the demurrer; its judgment is therefore reversed, and the cause is remanded for proceedings in harmony with this opinion.
Reversed.
I am not prepared to express an opinion upon the question as to whether a creditor can redeem in a case