Fry v. Warfield, Howell, Watt Co.

Granger, J. 1 — The following is the statement of the facts found by the district court, and of the propositions for consideration: “It seems that one Sutter, who- is a partner in the firm of Lebeck & Sutter, was the ' owner of the east half of the southwest quarter, and the west half of the southeast quarter of section sixteen (16), township eighty-one (81), range thirty-six (36) west of the 5th P. M., in Audubon county, Iowa, upon which were mortgages made by Sutter to Carter, Enders, and the Citizens’ Savings & Trust Company. The firm of Lebeck & Sutter became involved, and among other parties was indebted to the def endant the Warfield-Howell-Watt Company, who commenced an action against Lebeck & Sutter, levied upon this property on the 25th day. of June, 1894, and under a special execution upon said judgment sold the same, bought it in at sheriff’s sale, and took a sheriff’s certificate therefor. Afterwards, on the 17th day of December, 1895, no redemption having been made therefrom, the Warfield-Howell-Watt Company obtained a sheriff’s deed under said sole. In the meantime the prior mortgages had been foreclosed and the property sold thereunder, on the 10th day of April, 1895. After the defendant the War-field-Howell-Watt Company had obtained the deed under its attachment suit, and on the 18th day of December, 1895, they purchased the certificate of sale which had been issued under the foreclosure of the mortgages, and the plaintiff'claims to have made redemption therefrom. It appears also that one C. D. Dewing held a 561 mortgage, intended to cover the same property, junior to the mortgages above referred to, made by Sutter on the 9th day of April, 1894, and filed for record in Audtibon county on the 13th day of the same month. This mortgage stated that the land conveyed therein was in Audubon county, Iowa, and the property of gutter, but by mistake in the description given in the instrument the number of the range was stated as- thirty (30), instead of thirty-six (36), as it should have been. There is no doubt under the -evidence that Sutter never owned any land in Audubon county, except as -above described, and that he never owned any land in. range thirty (30), nor is there any question but that the parties intended- that the mortgage should be made and delivered upon the above-described land in range thirty-six (36), and for a long time supposed that this- had been done. This mortgage passed to the State Bank at Manning, and the plaintiff, Fry, is now bringing this suit to foreclose the same for the bank, asking that the same be corrected, and that the interest of the Warfi-el-d-Howell-Watt Company in the said premises be declared junior to the interest held by him. In determining whether plaintiff has now a superior lien, it will be necessary to consider: (1) Whether the mortgage made by Sutter to Dewing is senior to the sheriff’s deed obtained under the attachment proceedings; (2) whether plaintiff made a valid redemption from the foreclosure of the prior mortgages.” I. The grounds upon which it is urged that the mortgage is senior to the sheriff’s deed are two: First, that the recorded mortgage, notwithstanding the defect as to the range, imparted constructive notice; and, second that the Warfield-Howell-Watt Company had -actual notice of the mortgage. Our conclusion upon the -second proposition makes it unnecessary to consider the first. Appellant concedes that on the question of actual notice the evidence is in sharp conflict. That defendant 562 had notice to the extent of being told that the bank had a mortgage on the farm owned by Sutter in Audubon county is reasonably certain. Sutter had but the one farm in Audubon county, and we think the information sufficient to put defendant on inquiry. If he had such information, he had actual notice. Plow Co. v. Braden, 71 Iowa, 141. As the record of the mortgage showed the land to be in Audubon county, and gave a range not including such county, if the record is of any significance on the question of fact, it would strengthen the conclusion. 2 II. The redemption made by plaintiff from the prior mortgages was within nine months from the date of the sale, and no affidavit was filed as required by section 3118 of the Code of 1873, as follows: “The mode of making redemption is by paying the money into' the clerk’s office for the use of the person thereto entitled. The person SO' redeeming, if not defendant in execution must also' file his affidavit or that of his agent or attorney, stating as nearly as practicable the amount still unpaid and due on his, own claim.” That such an affidavit must be filed where redemption is made after the nine months from the date of sale is not questioned, but the parties are in contention as to sucli a requirement in case of redemption made before that time. In Goode v. Cummings, 35 Iowa, 67, the precise question is considered, and a conclusion stated that it is not required in cases of redemption prior to- the expiration of the nine months. The case cites, in support of the views expressed, Wilson v. Conklin, 22 Iowa, 452. It is thought by appellants that neither case involved the question so as to- be an authority, and the case of West v. Fitzgerald, 72 Iowa, 306, is referred to and quoted from, and because of some language there used it is claimed that the question is an open one for us to determine. We think the question was fairly involved 563 in Goode v. Cummings, and we may add that we regard the conclusion therein stated as the correct one. Taking the sections on the subject of redemption from 3101 to the one in question, 3118, and it is readily seen that redemptions ar e of different kindsi, and the distinction is marked as to those of creditors before and after the expiration of the nine months. After section 3113, the provisions are exceptions to the general ones stated. Section 3115 provides for an entry on the sale book, and the amount the last redemptioner before the expiration of the nine months is willing to. credit on his claim. There is no. such specific requirement as to other redemtions made before the expiration of the nine months. Section 3116 provides for a redemption by paying the legal disbursements of the last holder, added to the amount on the sale book. Section 8119 provides: “such redemptioner’’ must also credit the full amount of his claim unless he makes a like entry on the sale book, etc. Then comes what seems to. us. to be the decisive language: “The person so redeeming * * * must also file affidavit * * * stating .as nearly as practicable the .amount still unpaid and due on his. own claim.” The words “such redemptioner” and “the person so redeeming” must be intended to. limit the requirement as to the filing of the .affidavit to. the class or kind of redemptioners last spoken of, or provided for in the act, the distinction being as to the time of making the redemption. The most that can be said of West v. Fitzgerald, supra, is that it holds that what was said, in Goode v. Cummings was as to the manner of redemption, instead of a right of redemption. It is the manner of redemption that we are now dealing with, so that there is- nothing in the West-Fitzgerald Case to detract from the other case as authority. We need add nothing more to what is said in Goode v. Cummings. A motion to strike appellee’s additional abstracts from the files is sustained. The judgment will stand affirmed .