Williams v. Dickerson

66 Iowa 105 | Iowa | 1885

Reed, J.

1sa^e^mort1' Sosure^saie for morfalüau liollsnot yet redemption.0* I. By seeking to redeem the premises, plaintiff concedes, inferentially at least, that the sale is valid. The to redeem from an execution sale is given ^y the statute to enable the party by that means to preserve some right or interest in the property which, but for that right and its exercise, would be divested by the sale. The right of redemption given by the statute can be exercised only after the property has been sold, and, as the right is purely statutory, a court of equity will establish the right of a party to exercise it only in case the conditions exist under which, by the provisions of the statute, the right arises. Plaintiff’s right, then, is to redeem the land from the sale. But a redemption can be made only on the terms prescribed by statute. It is provided by section 3106 of the Code that “the terms of redemption in all cases will be the reimbursement of the amount paid by the then holder, added to the amount of his own lien. * * *” This section prescribes the terms upon which the redemption must be made, whether it is sought to be made from the purchaser at the sale, or from a lienholder who has redeemed from him. If it is sought to be made from the purchaser at the sale, it can be made only by the reimbursement of the amount paid by him iu the purchase. The amount of the judgment on which the execution issued by virtue of which the sale was made was $280.60. Defendants bid $1,587.30 for the property, and it was struck off to them at that price, and a certificate of purchase was issued to them by the sheriff. Plaintiff’s offer is to pay the amount of the judgment, and he claims the right to redeem the land by paying that amount. ITis position is that, as defendants have paid no portion of the amount bid by them into court, the sale operated simply to satisfy the amount of the judgment and costs; and hence that that is the amount paid by them, and that the redemption may be effected by reimbursing them that amount.

We think this position is not maintainable. The judgment in the foreclosure proceeding directs the sale of the premises on special execution, and it provides that the proceeds of the sale shall be applied in satisfaction of the amount of the judgment and costs, and that any balance thereof shall be applied in satisfaction of the notes which are not yet due. A sale of the land for an amount simply sufficient to satisfy the judgment would have operated to defeat the lien which defendants had under the contract for the security of that portion of the purchase-price which was evidenced by the notes not yet matured. Poweshiek County v. Dennison, 36 Iowa, 244; Escher v. Simmons, 54 Iowa, 269.

It was to their interest, then, that the land should sell for an amount sufficient to satisfy the whole of the indebtedness, and they clearly had the right to bid it in for an amount sufficient to do this. Their bid, then, was an offer to take the land at $1,587.30. The sheriff accepted that offer, and issued to them a certificate of purchase. The parties to the sale treated it as a sale at that price. Defendants never consented to a sale of the property for an amount merely sufficient to pay their judgment; nor did theybecojne parties to a sale for that amount. If plaintiff redeems the property, the redemption must be from the sale which was actually made. To permit him to redeem hy paying the amount of the judgment merely, would be to permit a redemption on terms materially different from those upon which the law provides it shall be made. The court cannot do this.

2._._. on^erroneous not voi'a.sale II. We think, also, that the facts stated in the petition do not afford a ground for setting aside the sale. The judgment in the foreclosure proceeding directs the sale of the land as an entirety. The. court in that proceeding plight have ordered the sale of an amount sufficient merely to satisfy the judgment; but this was not done. If it should be conceded that the order made is erroneous in this respect, it cannot be questioned in this proceeding. Plaintiff was a party to the foreclosure suit, and he is bound by the judgment and orders entered therein. The order sustaining the demurrer to the petition is right. The judgment, therefore, will he

Affirmed.