Lay v. Gibbons

"Wright, J. Whether the subsequent mortgagors were necessary parties to the bill of complainant to foreclose; whether such foreclosure and sale barred them of all right to redeem; whether the execution of the mortgage by the wife cut off all claim on her part of dower or other interest in the land; whether she not being a party to the original action, could to this plead usury, the homestead exemption, or other like defenses; we say whatever answer might be given to these and other important questions raised by counsel, we should still feel constrained to affirm this t decree. It will be observed that the Court set aside the sale under the special execution and ordered the premises to be re-exposed, and from the proceeds complainant is to be first paid his entire demand (as also the costs of foreclosure), the surplus, if any, going to the junior mortgagees. And the complainant having asked the Court to quiet his title, and respondents by their cross-bills having prayed affirmative relief, it was entirely competent for the Court to order such re-sale, for two reasons. First. The property was sold “ in a lump ” and not in parcels, Boyd v. Ellis, 11 Iowa, 97, and 379 the cases there cited; Singleton v. Scott, Id., 589; Grapengether v. Fejervary, 9 Id., 163; Bradford v. Limpus, 13 Id., 424. Second. A portion, of the property sold was the 'homestead of the mortgagors, and as such it should not, in the language of the law, have been sold, “ except to supply the deficiency remaining after exhausting the other property of the debtor, which is (was) liable to execution,” Revision of 1860, § 2281. Whether complainant’s title would have been vitiated for this reason, in an action of right, or any collateral proceeding, we need not, of course, determine. As the record stands (under the cross-bill), this is a direct proceeding to set aside the sale. And that the Court did not err in ordering a resale, under the circumstances, is to our minds quite clear. Affirmed.