72 Iowa 232 | Iowa | 1887
In March, 1875, one Thompson was the owner of certain real estate consisting of eighty acres, and he executed a mortgage thereon to Yandercook. A portion of the premises so mortgaged was the homestead of said Thompson. In 1877 one Hodges recovered certain judgments against Thompson, which have been assigned to and are the property of the plaintiff. In 1879 the mortgage was fore-closéd, and on June 2, 1879, the mortgaged premises were sold; and, when the statutory period of redemption had expired, the sheriff conveyed the premises to Yandercook, and the defendant claims under him. Neither the plaintiff nor Hodges was made a party7 to said foreclosure proceeding, and the homestead of said Thompson was not platted by any one prior to the sale by the sheriff under the foreclosure proceeding, and the whole of the mortgaged premises, including the homestead, were sold together. At the time the action to foreclose the mortgage was commenced, and until March, 1880, Thompson was in possession of said premises, and he, at the last-named period, surrendered such possession to Yan-dercook, and abandoned his homestead.
I. That the mortgage was the prior lien on the whole of the premises in controversy7, including the homestead of Thompson, is conceded, and the plaintiff claims that his judgments were also a lien on said premises. But is this true as to the homestead, and, if so, when did the lien attach? The indebtedness upon which the judgments were obtained accrued after the acquisition of the homestead, and therefore did not become liens thereon prior to the time such homestead ceased to exist, and it continued to exist until it was abandoned in March, 1880. As the action to foreclose was
II. The right of plaintiff to redeem was in no respect enlarged or diminished by the failure to plat the homestead, but it is provided by the statute that the homestead shall not be sold except to supply any deficiency remaining after exhausting the other property pledged for the payment of the debt. (Code, § 1993.) The plain tiff, at the time of thesale, hadalien on the land other than the homestead. It was, however, primarily liable for the payment of the mortgage, and it might have been first sold and exhausted, and the plaintiff could not justly complain except that, as to such portion of the land, he could bring an action in equity to redeem. As
AFFIRMED.