Tukey v. Foster

Dec 11, 1912

Reporters:: ,
Before:: Ladd

Ladd, J.

1. Mortgage foreclosure : appeal : jurisdiction. The mortgage sued on was executed by John W. Foster to the plaintiff February 25, 1888, both then being ■ res-idents of Nebraska, to’ secure the payment a promissory note óf even date, due five years thereafter. This mortgage was by its terms and in fact subject to a mortgage covering the same land, executed by Foster to Richman & Son, and by that firm assigned to John Prail, bearing date December 17, 1887, which was subsequently foreclosed without making ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍plaintiff a party to the proceedings, and sheriff’s deed issued^ in pursuance of the decree and sale, to Prail, October 30, 1890. The latter conveyed the land to W. A. Smith under whom, through mesne conveyances, defendants Peterson, Bennett, Knapp, and Reinholdt owned separate parcels of the land at the time this action to foreclose the mortgage from Foster to plaintiff was commenced. Peterson, in a cross-petition, prayed that he might be al*313lowed to recover from Smith on his warranty deed whatever amount he (Peterson) might have to pay in order to redeem his forty acres from plaintiff’s mortgage or decree foreclosing same. Decree of foreclosure was entered as prayed, and order entered that the purchaser at the sale might redeem from the sale under the former mortgage foreclosure by paying $3,000, with interest, and also allowed Peterson to recover from Smith, as prayed. Foster accepted service of the original notice in Oklahoma, so that judgment in rem only was entered. Neither he nor Eeinholdt appealed, and the attempted appearance of the latter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by counsel did not confer jurisdiction on this court. Ash v. Ash, 90 Iowa, 229.

2. Same : notice of appeal : parties. Nor was any notice of the appeals of Bennett, Knapp, Peterson or Smith served on either Foster or Eeinholdt. Because of the omission to make these defendants parties to the appeal, appellee has moved that the several appeals be dismissed. Co-parties, whose interests will be prejudicially affected by any change in the judgment or decree of the district court, must be served with notice of appeal. Section 4111, Code; Oliver v. Perry, 131 Iowa, 655; Sullivan v. Sullivan, 139 Iowa, 679. That Foster was served outside the state did not obviate the necessity of serving a notice of appeal on him. Dillavou, v. Dillavou, 130 Iowa, 405.

3. Same. Would a reversal of the decree be prejudicial to him or Eeinholdt? The effect of the foreclosure of the mortgage will be the satisfaction of the indebtedness of Foster from the property hypothecated as security to plaintiff; whereas, if such foreclosure is denied, the promissory note will continue an ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍obligation. This seems to be conceded by counsel for appellants; but they say that, even if the indebtedness were to be collected by foreclosure, the defendants could be subrogated to the claim of plaintiff against Foster on the note secured. All they acquired throught mesne conveyances under the sheriff’s deed by vir*314tue of the sale under the decree foreclosing the first mortgage was the title of the mortgagor and the interest of the mortgagee, subject to the lien, if any, of the second mortgage; and this being so, the enforcement of that lien was merely exhausting security given by the mortgagor, subject to which defendants had acquired the land. Manifestly no equities could arise in these circumstances calling for the application of the doctrine of subrogation. There is no escape from the conclusion that a reversal might prove prejudicial to Foster. Equally conclusive is the record as to Reinholdt. Neither-appealing, nor having been made a party to the appeal, the decree as to his land would be unaffected by a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reversal as to the tracts acquired by Peterson, Knapp, and Bennett; and for this reason the entire judgment in that event, instead of his equitable portion, would be saddled on his land. Clearly enough, then, he would be prejudicially affected by a reversal of the decree as sought; and, in the absence of service of the notice of appeal on him and Foster, the decree cannot be reviewed. Counsel suggest that, even if this is so, it is of no concern of appellee. But it is of concern to this court; for it is without jurisdiction to pass on issues the decision of which will prejudicially affect the’ interest “of coparties not served with’ notice of appeal. Clayton v. Sievertsen, 115 Iowa, 687.

4. Same : conveyances : convenants : liability of grantor. What has been said disposes of Smith’s appeal, also, in so far as it involves the decree of foreclosure. But he also challenges the correctness of that portion of the decree allowing Peterson to recover of him whatever he may be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍required to pay, in order to effect redemption of the parcel of land acquired r r ^ through mesne conveyances. As no one else is interested in this, it is subject to review; but the only doubtful question argued was settled in Fashay v. Shafer, 116 Iowa, 302, and McClure v. Dee, 115 Iowa, 546. See, also, Boice v. Coffeen, 158 Iowa, 705.

It follows that the appeals must be and are dismissed, *315save in so far as that of Smith involves the issues on the cross-petition of Peterson, and with respect to these the decree is Affirmed.