Tufts v. Stanley

42 Iowa 628 | Iowa | 1876

Rothrock, J.

No question is made upon the finding and decision of the court deducting the rents and profits from the amount necessary to redeem. The simple question presented is, did the court err in deducting the proportionate value of the forty acres released by plaintiff from the burden of his mortgage?

1. MORTGAGE: sale of property: contribution It is well settled in this State, that where encumbered real estate is subsequently sold by the mortgagor in jjarcels to different purchasers, each must contribute proportionto the discharge of the encumbrance, and not in the inverse order of the sale. Barney v. Myers, 28 Iowa, 472. If in this case J. G. Hopkinson had convejmd the remaining 160 acres to Stanley’s assignor, instead of executing a mortgage, the rule would unquestionably apply in all its force. In that case Tufts would be bound to see that each parcel of the land should be made to bear its proportionate share of the burden. How, if at all, is this case different in principle from the one supposed? Perry Hopkinson is a subsequent purchaser, and Stanley a subsequent mortgagee. It is undoubtedly true that if, before the plaintiff took his decree, and released the forty acres, Stanley had been made a party, he could have insisted that all the land should bear its proportion in the payment of the mortgages prior to his own. It is difficult to perceive what right he lias lost in th4t regard. No question is made as to the plaintiff having actual notice of Stanley’s nortgage, before he released the forty acres. It seems to be conceded that he had; indeed the record discloses that the cause was continued in April, 1873, to make new parties, and Stanley was accordingly brought in, and the forty acre tract was released in September, 1873.

2.-; • — ■: subsequent mortgagees, The plaintiff insists that Stanley is not a purchaser, and that the 160 acres should be exhausted to pay the University and Tufts’ mortgages, before having resort to the ° Jr ° forty acres sold to Perry Hopkinson. This position is not tenable. Stanley does take whatever interest his mortgage gives him as a purchaser, and does not sit in the seat of the mortgagor, as in case of an heir taking by descent.

The satisfaction of the mortgages by Tufts, he being then the holder of both the University mortgage and his own, must be held as a rateable satisfaction of both. There is nothing in the record to show what, if any, consideration he received. We must presume that, as he knew Stanley’s right to have all the land burdened alike with the prior mortgages, he did not release without a consideration. However this may be, we hold that by releasing the land, he received satisfaction pro rata of the mortgages held by him.

Affirmed.