57 Iowa 545 | Iowa | 1881
The agreed statement of facts upon which the cause was submitted to the court below, omitting the exhibits referred to, is as follows:
“1. Alvin Witt was born May, A. D., 1866.
“2. Marilda Witt, formerly Marilda Decon, was duly appointed guardian of said minor, prior to January 1, 1873, and
“3. On or about January, 1873, said minor being seized in fee of the lands in controversy in this suit, his guardian, upon due application to the proper court obtained an order for the sale of said lands.
“ 4. In pursuance of said order for the sale of said land, said guardian sold and conveyed said land to Edward Homewood and took from said Homewood and wife a mortgage for said unpaid purchase-money * * * all of which was duly approved by the Circuit Court of Union county.
“5. On the 6th day of June, A. .D. 1877, plaintiff filed her petition, as guardian of said Alvin Witt, for the foreclosure of said mortgage, making defendants, James Mewhirter and John A. Brown, his grantor, parties defendant thereto.
“6. On the trial of said foreclosure suit plaintiff dismissed, without prejudice to the rights of said minor or the cause, as to defendants Brown and Mewhirter, and foreclosed as to the Homewoods only.
“7. Said land was sold on special execution to Marilda Witt, guardian of Alvin Witt, for the use of Alvin Witt, November 16, 1878, and redemption not having been made a regular sheriff’s deed was executed to said guardian for the use of said minor, on the 17th day of November, 1879, and the said deed duly filed for record and recorded in the proper records on the same day.
“8. That Edward Homewood permitted the taxes on said land to become due and deliquent; that said lands were regularly sold for non-payment of taxes, and that three years after such sale the tax purchaser, J. A. Brown, obtained a regular treasurer’s tax deed for said land.
“ 9. On the 28th day of June, A. D. 1877, said James A. Brown and wife, conveyed said hinds to defendant James Mewhirter by special warranty deed.
“ 10. On the —— day of ———, A. D. 18 —, defendant,
“ 11. On or about December 10, A. D. 1879, and prior to the commencement of this suit, plaintiff tendered to defendant Mewhirter the sum of one hundred and seventy-four dollars, which said sum was duly and legally tendered to said Mewhirter, and the right of redemption demanded, which tender and right of redemption was by said defendant refused aud denied. On the same day said sum was deposited with the clerk of the court for said defendant, and has ever since and now remains with said clerk, subject to the order of said defendant for the purpose of redemption from said tax sale. It is agreed that Henry A. Witt, and Henry Alvin Witt, and Alvin Witt, are one and the same person, and that mistakes in any names mentioned in pleadings or agreed statement, may be corrected at any time. It is agreed that if the court shall find on the facts that plaintiff is entitled in this action to tbe relief prayed for, and to redeem from taxes, the amount necessary to redeem shall be determined by a commissioner to be appointed by the court, who shall compute the amount necessary to redeem under instructions given by the court, said commissioner to report at the next term. It is further agreed that if either party desire to prosecute an appeal from the decision of the Circuit Court, that this agreed statement of facts, with the exhibits attached thereto, contains all the evidence introduced on the trial in the Circuit Court.
The court decreed “that the defendant, James Mewliirter, have his election to redeem the premises in controversy herein * * from the amount due under the foreclosure and sale of said premises on execution on the mortgage thereon, executed by Edward Homewood and wife to said plaintiff, * * or to compel plaintiff to redeem from the tax sale of said lands to J A. Brown, and that defendant enter his election
appeares that the court ordered the guardian to sell the lands in question for one-third cash, and the balance in six and nine months, secured by mortgage on the real estate sold. In accordance with this order the guardian sold the lands to Edward Homewood, and took from him and his wife a mortgage thereon, dated June 2, 1873, to secure the deferred payments amounting to $2,129.69. This mortgage was to Marilda W. Decon, guardian, and is conditioned for the payment to Marilda W. Decon, guardian, of the sum secured. After the sale to Homewood and the execution of this mortgage, on the 3d day of November, 1873, the land in question was sold to J. A. Brown, for the delinquent taxes of 1872. Now, whilst the mortgage was executed to Marilda W. Decon, guardian, it is apparent from all the facts admitted in the case that she held the mortgage simply in trust for her ward, Alvin Witt. If the guardian had died insolvent, it is apparent, we think, that her creditors could not have subjected this mortgage to the payment of her debts, simply for the reason that the beneficial interest therein belonged to her ward. In Rice v. Nelson, 27 Iowa, 148, it is said “ that any right, whether in law or equity, whether perfect or inchoate, whether iu possession or action, amounts to ownership in the land, and that a charge or lien upon it constitutes the person claiming it an owner, so far as ic is necessary to give him the right to redeem.” And in Burton v. Hintrager, 18 Iowa, 348, it was determined “ that the same interest which, if held by an adult, would
The cause will be remanded to the court below, with direction to deny to defendant any extension of the period within which to make his election to redeem, and to determine the amount which plaintiff shall pay to effect redemption, as contemplated in the original decree.
Affirmed.