Burham v. Fritz

13 F. 368

• Court: United States Circuit Court
• Decided: July 1, 1882
• Status: Published

Opinion

Love, D. J.

The question thus presented has, we think, been fully decided by the supreme court of the state of Iowa in Diddy v. Risser, 55 Iowa, 699. Although that case was decided upon grounds by no means satisfactory to our own judgment, it is our duty to follow it as a law of property in this state. It is too obvious for discussion that we cannot, by disregarding the rule laid down in that case, set up a different rule of property for the federal courts in this district.

We are wholly unable to distinguish the case of Diddy v. Risser from the case before us upon any material grounds of fact or law. The only difference between the two cases consists in the fact that in Biddy v. Risser the sale from which the junior judgment creditor sought to redeem was under a decree foreclosing a mechanic’s lien, while in the present case the sale was under a decree foreclosing a prior mortgage. We cannot see, however, that this fact makes any difference in the principle of the two cases. Indeed, the supremo court of Iowa, in its opinion, does not proceed upon any such distinction, but puts its judgment upon the broad ground that “the holder of a simple judgment lien never had an equitable right to redeem from a senior lienholder after the execution of a sheriff’s deed made pursuant to a sale thereunder.” We suppose that the supreme court of Iowa used this language with reference only to .the jurisprudence of the state of Iowa. As a proposition of law it certainly is not true, if applied in the wide and comprehensive sense which the words imply. The rule was, I think, quite otherwise at common law. 2 Jones, Mortg. § 1436, and cases there cited; 4 Kent, 162; Story, Eq. § 1053; Brainard v. Cooper, 10 N. Y. 356; Powell, Mortg. 251.

It would seem, in view of these and other authorities, that the doctrine of the Iowa supreme court can be sustained only upon the ground that we have in Iowa a statute giving the right of redemption, and prescribing the time within which it must be exercised. Perhaps it might be well argued that it is the policy of our statute to require the judgment creditor holding a junior lien to make his redemption promptly within the prescribed time, and not allow him to disturb and harass a purchaser long after the time of sale, and at any time within the statute of limitations. But, however this may be, we are bound by the rule as laid down by the supreme court of the state.

The demurrer to the cross-bill will be sustained; but since the counsel for the complainant in the cross-bill have made no reference to the case of Diddy v. Risser, the court will be willing to hear them, in writing, upon th¿ application of that case to the present controversy.

Demurrer sustained.