Harrison v. Wilmering

Supreme Court of Iowa

Harrison v. Wilmering

32 N.W. 279, 72 Iowa 727

CourtSupreme Court of Iowa

DecidedMarch 10, 1887

StatusPublished

Cited by2 cases

This text of 32 N.W. 279 (Harrison v. Wilmering) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harrison v. Wilmering, 32 N.W. 279, 72 Iowa 727 (iowa 1887).

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Opinion

Adams, Ch. J.

The plaintiff claims to be the owner of the lots through an execution sale made upon a judgment against the defendant, Wilmering. The latter claims to have redeemed from the sale. The question presented arises upon a demurrer to the defendant’s answer. The facts appear to be as follows: There were two judgments against the defendant, — one held by one Coe, and the other by the [728]*728Louisa County National Bank. The property was sold on the Ooe judgment July 7, 1883, and bid in by Ooe. About eleven months later, the property, or, more properly perhaps, Wilmering’s right of redemption, was sold on the judgment held by the bank, and purchased by the present plaintiff,-Harrison. Before the expiration of the year from the first sale, the defendant in the two executions, being the present defendant, paid to the clerk, with interest, the two amounts for which the property had been sold under the two executions, respectively, for the purpose of redeeming from both sales. The plaintiff, however, denies that he had the power to redeem from the second sale, being that under which he claims, because, as he insists, the interest sold was a mere right of redemption, and the statute does not allow a right of redemption from a sale of the right of redemption. But, under the statute, the execution defendant clearly has a year from the first sale in which to redeem therefrom. He exercised that right within the year. . Having exercised it, he stood in the same relation to the plaintiff, the second purchaser, in which he would have stood if there had been no • first sale. It is plain to be seen that the rule contended for by the plaintiff would frequently result in a sacrifice of the defendant’s property. The right given by statute to redeem from the first sale would be rendered valueless. 'We think that the court correctly held that the defendant had a right to redeem from both sales.

Affirmed.

Reed, J., dissenting.

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Adams, Ch. J.

The plaintiff claims to be the owner of the lots through an execution sale made upon a judgment against the defendant, Wilmering. The latter claims to have redeemed from the sale. The question presented arises upon a demurrer to the defendant’s answer. The facts appear to be as follows: There were two judgments against the defendant, — one held by one Coe, and the other by the [728]*728Louisa County National Bank. The property was sold on the Ooe judgment July 7, 1883, and bid in by Ooe. About eleven months later, the property, or, more properly perhaps, Wilmering’s right of redemption, was sold on the judgment held by the bank, and purchased by the present plaintiff,-Harrison. Before the expiration of the year from the first sale, the defendant in the two executions, being the present defendant, paid to the clerk, with interest, the two amounts for which the property had been sold under the two executions, respectively, for the purpose of redeeming from both sales. The plaintiff, however, denies that he had the power to redeem from the second sale, being that under which he claims, because, as he insists, the interest sold was a mere right of redemption, and the statute does not allow a right of redemption from a sale of the right of redemption. But, under the statute, the execution defendant clearly has a year from the first sale in which to redeem therefrom. He exercised that right within the year. . Having exercised it, he stood in the same relation to the plaintiff, the second purchaser, in which he would have stood if there had been no • first sale. It is plain to be seen that the rule contended for by the plaintiff would frequently result in a sacrifice of the defendant’s property. The right given by statute to redeem from the first sale would be rendered valueless. 'We think that the court correctly held that the defendant had a right to redeem from both sales.

Affirmed.

Reed, J., dissenting.

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32 N.W. 279, 72 Iowa 727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-wilmering-iowa-1887.

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