Phelps v. Pope

Adams, Ch. J. . sale • rí^íít of redemption. Different mechanic’s liens upon the same property have priority in the order in which the respective statements are filed. Code, § 2139.. The court correctly found that the plaintiff’s lien for $726.83 wag paramount, and that the plaintiff’s other lien was equal to, or co-ordinate with, that of Grupe & Turner. The sale, we think, should not have been made until the relative rights of the lienholders had been definitely settled. Iaege v. Bossieux, 15 Gratt., 83. Perhaps upon a proper application, either by Grupe & Turner, or by ,the judgment debtor, the court would have been justified in setting it aside, but this is not asked. The sale at most, however, should have no greater effect upon Grupe & Turner’s lien than it would have had if they had not been made parties to the plaintiff’s action. The sale under the paramount lien should have no greater effect upon Grupe & Turner’s lien than a foreclosure sale under a decree of foreclosure of a senior mort [693] gage would have upon the rights of a junior mortgagee not a party to the decree. He can redeem from the claim within the same time within which he could redeem if there had been no sale. Johnson v. Harmon, 19 Iowa, 56. This, as we understand the decree in this case, is substantially what the court held. Proceeding upon the same principle, the court held that Grupe & Turner might redeem from the -plaintiff’s second claim, and in this, too, we think that there was no error. But they insist that they should not be confined to this remedy, but should be allowed to elect not 'to redeem, and that it should be decreed that in such case the plaintiff should pay them a jyro rata share of the amount for which the property was sold above the amount of the plaintiff’s first claim. Without denying that under proper proceedings Grupe & Turner might be entitled to such share, it appears to us that they are not as the pleadings stand. They could not become entitled to such share without adopting the sale as .made for their benefit as well as for the benefit. of the plaintiff. If it had been made under a decree expressly providing that it should be made for the benefit of all the lien-holders, it is evident that Grupe & Turner could not have their election to share in the proceeds of the sale or to redeem therefrom. They have seen fit to ask that they be allowed to redeem, and this right, as we understand the decree, has been granted them. This precludes them, we think, from now claiming that the sale was made for their benefit. The language of the decree is a little obscure upon the point under consideration, and we think it ought to be modified. The language is: “In case the premises shall remain unredeemed, and the plaintiff shall obtain a deed therefor, 'he shall take the premises subject to the lien of these defendants.” If anything more is meant than that the defendants Grupe & Turner shall have a right of redemption by paying both of plaintiff’s claims, within such time as they might redeem if they had not been made parties, we think the dc [694] cree is wrong. That the parties’ rights may be made certain in this respect we think that the language of the decree should be modified. Each party should pay half the costs of the appeal. Modified and Affirmed.