Lakin v. C. H. McCormick & Bro.

Granger, J.— It will be observed that the gist of the controversy is as to the effect of the levy of the execution on the premises, January 14, 1882. But for such levy appellant’s lien would have expired January 16, 1882, and plaintiff’s mortgage, before that a junior lien, would have taken precedence; and we are to inquire if the levy of the execution defeats such a result. The arguments bring in question the effect of our holding in the case of Albee v. Curtis, 77 Iowa, 644. In that case the defendant firm was a judgment lienholder, junior [547] to tile plaintiff’s mortgage lien, and was not made a party to the plaintiff’s foreclosure proceeding, and hence its period of .redemption was not limited by decree, and, as the judgment lien gave rise to the right of redemption, the latter would expire with the former. The defendant took execution on its judgment, and made a levy thereon December 13, and its lien would have expired January 1 thereafter, and the sale to Curtis & Morey was February 7. In that case, it was urged that because the execution issued before the expiration of the ten years, and the land was after-wards sold thereon, the lien of the judgment was extended. But we held otherwise, and that the lien was measured by the statute fixing its duration at ten years from the date of the judgment. Code, sec. 2882. It is said by appellant in this case that the two cases are riot so alike that the holding in that should be of controlling importance in this. It is true that the cases are in some respects unlike, and yet the controlling facts seem to be the same. In that case, a junior lien-holder, by taking his execution before, and making his sale after, the statutory period, sought to avoid the operation of the statute in favor of the senior lienholder. In this case, the senior lienholder, by doing the same thing, seeks to avoid the operation of the statute in favor of the junior lienholder. The controlling question in both cases is as to the effect of the levy and sale under the execution. A careful study of the consequences to result from an application of the law, in general, furnishes no reasons for applying different' rules to the two cases. It is a construction of the same statute as applicable to the same facts, barring the class of the lienholder invoking its aid. It is said that, if the rule contended for by appel-lee is -to prevail, the sale of land might be enjoined by some other creditor, and thus defeat the sale, or render it of no effect. Following the line of thought, so might the levy of the execution be enjoined, and it is not pretended but that the levy must be made to preserve the lien. But the thought is not controlling. If a court [548] should grant an injunction in such a case, we may assume it would provide for the safety, of the parties by suitable bond. And further, without committing ourselves to any rule under such a state of facts, there is both reason and authority for making such interference by legal process as to defeat the sale within the limitation a ground for extending the lien. Little v. Harvey, 9 Wend. 157; Graff v. Kip, 1 Edw. Ch. 619. It is claimed to be unreasonable that a party should have the right to an execution and levy on the land, and not the right to sell under the levy. Speaking only with regard to the respective lienholders, the party has the same right to one as the other. If he seeks the advantages of his lien, he should not defer action until it is too late to perfect his rights thereunder. The law fixes the period, and provides the means for rendering his lien effectual. If he neglects action until too late to complete his work -within the period, then the right to make the levy is a barren one ; in effect no right. We are referred to the cases of Barth v. Bank, 4 N. E. Rep. (Ill.) 509, and Riggs v. Goodrich, 74 Mo. 108, in both of which there is a holding, under a similar state of facts, that the levy of the execution extends the lien. In the Illinois case, under the provisions of an act of 1872, it extends for one year. The Missouri case is under a law much like ours, and the levy extends the lien of the judgment “until the writ is executed.” Our holding has strong support in a number of cases in New York, of which see Little v. Harvey and Gaff v. Kip, supra. Tufts v. Tufts, 18 Wend. 621; Mower v. Kip, 6 Paige, Ch. 88; Ex parte Peru Iron Co., 7 Cow. 553. The uniform holding of this court has been in accord with the language of the statute, that the lien extends ten years from the date of the judgment. Denegre v. Haun, 13 Iowa, 245; Bertram v. Waterman, 18 Iowa, 519; Hendershott v. Ping, 24 Iowa, 134; Boyle v. Maroney, 73 Iowa, 70. It is true these rulings have been on facts differing from this case, and they are cited only as showing how the [549] language of tbe law lias generally been considered. If exceptions are to be made, they should be for reasons more cogent than appear in this case. The judgment of the district court is affirmed.