Anson v. Anson

Dillon, J. i. poms-p£r?ies:E: junior mortgage, The plaintiff, a junior mortgagee, was not made a party to the foreclosure proceedings of the senior mortgagee, although it is averred that the latter had, at the time of the institution of those protii n i • • n cecdmgs, both actual and constructive notice or the rights of the former. Under these circumstances the principle is elementary and undisputed, unless altered by statute, that the second mortgagee is not barred of his right to foreclose against the mortgagor, or of his right to redeem from the first mortgagee or his assignee, or the purchaser at the foreclosure sale. Ten Eyck v. Cassad and Rowley, 15 Iowa, 524; Veach v. Schaup, 3 Id., 194; Heimstreet v. Winnie, 10 Id., 480; Bates v. Ruddick, 2 Iowa, 423. %__imder the statute. But the defendants, Bice and Caswell, contend that this will has been altered by statute, and refer to and reiy ^011 ^he act of April 2d, 1860. Ch. 114, Laws, 1860, p. 148; Rev., § 3664. This act provides, “ that in all cases where judgments or decrees are rendered by any of the courts of this State upon a foreclosure of mortgages on real estate, the defendant’s judgment creditors and other creditors having liens upon the mortgaged premises, shall, in case of the sale of the mortgaged premises on execution, have the same time to redeem and the same rights to redemption as in cases of sales on ordinary judgments at law.” [59] Such is the imperfection of language, and want of care and skill in using it, that legislators, as well as others, frequently fail to express the precise idea intended, neither more, nor less, nor different. The language above quoted affords a base broad enough for the defendant’s proposition, and yet standing alone, it does not necessarily require that construction. Viewed in the light of the occasion of its passage, and it is plain that the legislature do not intend to enact the startling innovation and unreasonable rule that a subsequent lien holder, though not made a party, would, unless he redeemed within the time limited, be forever barred of the right. ■j._¡¡tatstrued. Under the Code of 1851, this court had decided, that the mortgagor and other lien holders, who were made parties, could not redeem land sold under a decree of foreclosure, alter a sale under a special execution. In other words, the law was, that redemption by such persons must be made before the sale, and could not be made after. Kramer v. Rebman, 9 Iowa, 114, decided at June Term, 1859. Now, the object of the act of 1860 was to enlarge the rights, as thus declared, of the mortgagor and lien holders, by giving them a right of redemption after sale, the same, as to time and terms, as in cases of sales upon ordinary-judgments. The act contemplates and refers to cases where the debtor and lien incumbrancers are made parties. If made parties, they must redeem within the time and upon the terms prescribed. If not made parties, the act does not appljq and consequently they are not bound to redeem within the time thus limited. The defendant’s construction contravenes the legislative intention, by restricting, rather than enlarging, the rights of subsequent incumbrancers. . [60] 4. _ tender. II. The plaintiff, not being barred, may, of course, file his petition to foreclose his mortgage, and redeem from the prior one or the sale thereunder. This he.did. jju|. jt jg 0bjecte(j that in order to redeem he ought to have tendered the amount due on the .first mortgage. The petition, however, shows a reason for not doing so. It is alleged that Rice and Caswell have been in possession since January, 1862, and are liable to account for rents and profits, and for waste committed. Of these he asks an account, and that the amount, when ascertained, be deducted from theBurdett Wood mortgage, and proffers to pay the balance, if any, when it is ascertained. This is sufficient, especially when the right to redeem is denied and resisted. Laverty v. Hall, 19 Iowa, 526, and cases cited; Stapp v. Phelps, 7 Dana (Ky.), 296. As to the necessity of a tender in any case, where the junior mortgagee files a bill to foreclose and sell, and pay all incumbrances out of proceeds, see Vanderkemp v. Shelton, 11 Paige, 28. 5. — purchaser mortgage. Rice by his purchase became, in equity,.the assignee of the Wood mortgage; and Caswell is likewise the assignee thereof, by virtue of his purchase from Rice, and they are entiled to be subrogated to all rights ar¡s;ng thereunder. It follows, that Rice and Caswell are, on the one hand, entitled to interest on the prior mortgage until it is redeemed by the plaintiff, and, on the other hand, they are liable to account to him for rents and profits and waste. Ten Eyck v. Cassad & Rowley, 15 Iowa, 524; 1 Washb. on Real Property, 555, 568, 631; Goodman v. White, 26 Conn., 317; Thompson v. Chandler, 7 Me. (Greenl.,) 377; Bradley v. Snyder, 14 Ill., 267; Benedict v. Gilman, 4 Paige, 58. [61] 6.■ — -pursale. [60] III. It is alleged in the petition that Rice, after he came [61] into the possession of the property, was in duty bound to pay taxes thereon, but instead of doing so, purchased m the same for taxes, with intent to cut off the interest of the plaintiff, &c., &c. If the averments of the petition are true, Rice would not thereby acquire rights which would bar the plaintiff from redeeming, on the payment of the proper amount. The judgment of the District Court sustaining the demurrer to the petition is reversed, and the cause remanded with leave to the appellees to answer, if so advised. Reversed.