Sterling Manuf'g Co. v. Early

28 N.W. 458, 69 Iowa 94

• Court: Supreme Court of Iowa
• Decided: June 14, 1886
• Status: Published

Opinion

Rotiirook, J.

i. mortgage: redemption1 jifagmeiit menfSta? clexed. The facts of the case are as follows: On the thirteenth day of May, 1875, one Robinson, being the owner °1’ eighty acres of land, executed to D. Carr Early & Oo., a mortgage thereon to secure the payment of $200. This mortgage was foreclosed in the year 1878, and on the twenty-third J 7 J day of March in that year the land was sold on special execution to said Early & Oo. for the amount of the judgment in foreclosure and costs, and a certificate of sale was duly issued to the purchasers. Early & Oo. assigned the certificate of purchase to the defendant Davis, and on the nineteenth of March, 1879, the sheriff executed a deed of the property to Davis, who took possession of the land. On the twenty-fifth day of August, 1881, Davis sold the land to TI. PI. Neiner, who on the nineteenth day of Septembfer, 1882, sold the same to the defendant, Theresa Myer, and she has been in possession of the land since her purchase. On the twenty-ninth*day of January, 1877, the plaintiff herein recovered a judgment in the district court of Sac county against said Robinson for the sum of $103 and costs. The judgment was not indexed at the time it was rendered, nor until some time in the year 1879, and not until after Davis took the assignment of the certificate of purchase, and received his deed from the sheriff. The plaintiff claims the right to redeem from the sheriff’s sale upon the ground that it is a junior judgment incumbrancer, and was not made a party to the action in foreclosure. The defendants concede that the plaintiff would have a right to redeem if plaintiff’s judgment had been indexed before the foreclosure sale. But they claim that they had no actual notice of the judgment, and, by reason of the failure and negligence of the plaintiff to cause the judgment to be indexed, they had no constructive notice of the judgment, and that the plaintiff cannot now assert the right to redeem; or, as they express it, the plaintiff ought to be “barred and estopped” from asserting any right to redeem. The defendants filed a joint answer.

It does not appear what consideration Davis paid for the assignment of the certificates of purchase, nor what consideration was paid for the land by the subsequent purchasers, nor whether their conveyances were with covenants of warranty, or merely quitclaim deeds. There is something said in argument about the defendants being innocent purchasers without notice of plaintiff’s judgment. We think that, whatever the character of the conveyances may have been to those to whom Davis conveyed, they took no greater interest in the land than he had, because the plaintiff’s judgment was indexed before Davis parted with his interest. And, in our opinion, Davis being a mere assignee of the certificate of purchase, he acquired no right in the land greater than that held by Early & Oo..as the purchasers at the sheriff’s sale. The question to be determined, then, is, was the judgment a lien upon the land before the foreclosure of the mortgage? If it was, plaintiff has the right to redeem.

It appears that, when Early & Co. foreclosed the mortgage, they sought to make all lienholders parties, and that the defendant was not made a party because the judgment was not indexed, and Early & Co. had no actual notice of its existence; and it appears that they would not have advanced the court costs, attorney’s fees, and other expenses macle necessary by the foreclosure, without' making the plaintiff a party, if they had known of the judgment; and, for aught that appears, it may have been important to foreclose the junior lien of the plaintiff if it had been known that such lien existed. Indeed, it is always desirable to do so. The present case is an illustration of the importance of it. The assignee of Early & Co. and his grantees were in possession of this land as owners, as they supposed, for about six years, before this action to redeem was commenced. By the failure of the plaintiff to cause the judgment to be indexed, it claims that it should now be allowed to redeem from the defendants by setting off the rents and profits of the land against the mortgage. We think it must be accepted as a fact, especially as the cause was submitted on the petition and answer, that the defendants would not, with a knowledge of the judgment, have changed their position by a foreclosure and sale and possession of the land, with the rights of a junior incumbrancer unaffected by their foreclosure, and liable to be asserted at any time within the statute of limitations. This being so, we can see no diffei’ence in principle between this case and the case of Thomas v. Desney, 57 Iowa, 58, and Cummings v. Long, 16 Iowa, 41. These cases, in effect, hold that third persons cannot be charged with constructive notice of a judgment unless the same is correctly indexed.

Aeeirmed.