Kemerer v. Bournes

Rothrock, J. i. dower, ; moneylassumption ol mortgage. I. Edward Bournes purchased the premises in controversy not only subject to the mortgage, but he assumed to pay it. He thus made the mortgage his own. The defendant as his widow is not en- . . , titled to a distributive share m the property because it was sold on execution during the life of the 1ms175 band. Oodo, § 2M0. Sncb sale would have barred the right of defendant of her dower or distributive share if her husband had been the owner of the property, and executed the mortgage thereon alone. The provision of the statute above cited applies with more force where, as in this case, the defendant’s husband purchased the property subject to the mortgage, and assumed its payment as part of the purchase money. 2.homestead: ment'o^oócumgof iore-Kl" It appears from the evidence that Edward Bournes took possession of the property, and with his family commenced to 0CClW same as a home, about June 1, 1876. The action to foreclose the mortgage for the two notes held by Matthews was commenced before that time. The service of the original notice was accepted by Bournes on the 2d day of May, 1876, and judgment and decree were rendered on the 22d day of that month. It is claimed that the defendant should have been made a party to that action, and that because she was not a party her homestead right in the premises was not extinguished. It is not urged that the mortgage was not a lien upon the property in controversy, but it is claimed that if the defendant had been made a party it would have been her right to insist that the other property should be exhausted before resorting to her homestead, and that such right not having been adjudicated she may now assert the same. But the action to foreclose was commenced and pending before the defendant and her husband took possession of the property. Under these circumstances she cotdd have asserted no right of homestead as against the mortgage. "When she took possession, she was charged with notice of the pendency of the action, and she could not afterward acquire a homestead right to the prejudice of the mortgagee. 3. i’ractice ; ofevkience'1; co'urt. After the close of the opening argument in the court below, defendant offered to introduce further evidence to show that the occupancy of the property by defendant commenced prior to the commencement of the Matthews foreclosure case. The [176] court refused to allow the offered evidence to be introduced. This was a matter within the discretion of the court, which can only be disturbed upon a clear showing that there was an abuse of the discretionary power confided in the court. No such showing has been made. Indeed it does not appeal' from the record what evidence was offered. If it had been allowed to be introduced we are unable to say what its effect should have been, simply because we are not advised as to what it was. If, however, it had been found that possession had been taken before the action for the foreclosure was commenced, we cannot see how the defendant could now be allowed to claim that she should have the right to require that the other property should be exhausted before resorting to her alleged homestead. The rule requiring such a disposition of mortgaged property has been held to have no application to a third party who purchases the property after the execution of the mortgage. Barker v. Rollins, 30 Iowa, 412. 4. mortgage : p”rT'í°i?oilern due. II. Having determined that the defendant was not entitled to homestead nor dower rights in the property, we are next to determine what right she acquired by her purchase of the note for $250 from Dobbins, the mortgagee. It will be seen from the foregoing statement of facts that she purchased the note after the foreclosure sale, and about the time that the year for redemption expired. Dobbins, the mortgagee, was not made a party to the foreclosure; he was the holder of the note and of the lien of the mortgage to secure its payment. By the purchase of the note the defendant acquired his right to the lien of the mortgage. The lien for the amount of the said note was junior and inferior to the lien under the Matthews foreclosure, because this was the last note to mature. The defendant, then, is a mere junior lien holder, with the right to foreclose subject to the prior lien. But she cannot foreclose in this action; her claim to foreclose is the assertion of a cause of action or counter-claim, and this is not permissible in an action for the recovery of real property. Code, § 3245. [177] Being a mere junior lien-holder she is not invested with the right to the possession of the premises. If she should assert her lien by proceedings in foreclosure, it will be the right of the plaintiff to redeem from her junior lien, and this is the measure of her rights as assignee of the note and the mortgage lien. If the plaintiff elects not to redeem, then the foreclosure must proceed subject to the senior lien of the plaintiff. Affirmed.