Street v. Beal

Lowe, J. The case, as made by the bill and answers, is not varied by the evidence taken and submitted. The bill is without equity and should have been dismissed. [70] If in equity the plaintiff has the right to redeem lots 1, 2 and 3, under the circumstances stated in the bill, by paying the proportional value which they bear to the whole mortgage premises, still it does not appear from the face of the bill, or the evidence, that he offered to do so, or that he is ready or willing to do so now, except from the vaguest implication. But it may be remarked, as a matter of law and equity, that he possessed no such right; nor were the defendants bound to accept money for a- partial redemption, had it been tendered. The doctrine upon the subject will be found settled against the plaintiff’s pretended claim, in 1 Hilliard on Mortgages, chap. 15, §§ 31 and 32; also in the case of Taylor v. Porter, 3 Mass., 355; Gibson v. Crehore, 5 Pick., 146; Smith v. Kelly, 27 Maine, 237; Johnson v. Candage, 31 Id., 28. The rule seems to be very well settled, that a purchaser of a portion of the mortgage property cannot redeem the mortgage without paying the whole debt; in which event it may be stated, he will stand in the place of the party, whose interest in the estate he discharges, and will hold it till the others interested with him pay their shares of the debt, according to the proportional value of the respective parties. But the plaintiff further claims this right of a partial redemption, upon the ground, that the judgment of foreclosure was void, as to his interest in the mortgaged premises, because he had not been made a party to the proceeding. In the case of Heimstreet v. Winnie et al., 10 Iowa, 430, we held just to the reverse of this proposition, to the effect, that whilst it was certainly regular and good practice to make all persons, whether senior or junior incumbrancers, parties in a foreclosure proceeding, for reasons therein stated, yet, that it was not indispensable, and would not vitiate the proceeding if it was not done. The property mortgaged was a single tract of land, of [71] thirty-six acres, as it was described in the mortgage, so it was sold by the sheriff, under the foreclosure. The objection, that it was thus sold as a whole, and not in parcels, according to its subdivisions, cannot avail, for the reason that the mortgagees were nbt parties to the subdivision thereof into town lots, the same having been done by third parties, long after the execution of the mortgage. Besides, it is not pretended that the whole .mortgaged property is, or was, worth more than the debt, so, in no event, was the plaintiff prejudiced thereby. An order will be entered in this Court, dismissing the plaintiff’s suit at his costs, without prejudice. Reversed.