Jones v. Hartsock , 42 Iowa 147 ( 1875 )

Day, J.

I. Appellant claims that the plaintiff had no right upon which to base a redemption, until he recovered his judgment against Hartsock, which was not obtained until the decree appealed from was entered. In support of this position appellant cites the Nevision, section 3333, Code of 1873, section 3103. This section occurs in the chapter relating to sales under execution, and refers to a redemption from such sale. It provides that any creditor of the defendant whose demand is a lien upon the real estate sold may redeem the same at any time within nine months from the day of sale. But a mechanic’s lien, before judgment thereon, is not of such character as to entitle the holder to redeem. This section recognizes the fact that the claim of the mechanic, properly filed, is a lien, but not of such a character as to entitle the holder to redemption until he recovers judgment. Appellant also cites the next section, 3331 of the Revision, 3101 of the Code, as defining the classes of persons who may redeem, and by implication excluding the holder of a mechanic’s lien. This section also refers to redemption from sale. The plaintiff’s right to redeem is not connected with nor dependent upon the sale. If it exists at all it is based upon the broad equitable ground that, he holds a lien upon the property which has not been cut off by foreclosure. His right to redeem would have been as complete, and the necessity for redemption would have been as great, if no sale had been made. The sections quoted and relied upon do not affect this right.

II. Appellant further insists that under the Revision, sections 1857 and 1183, the action for the establishment of a mechanic’s lien is at law, and that it cannot be claimed that Jones should have been made a party to the Boarts & Swain suit, especially as no notice of his claim was given, and it was not filed until two days after the Boarts & Swain action was commenced. Section 1858 of the Revision provides: “In all suits under this act, the parties to the controversy shall, and all other parties interested in the matter in controversy, and in the property charged with the lien may, be made parties, but such as are not made parties shall not be bound by any such proceedings.”

l. mechanic’s junior lien closure. Appellant insists that this section must be construed in connection with sections 3333 and 3331 before cited. We have already seen that these sections apply to redemption from sale under execution simply, and that they have no application to this action. They in no way affect the construction of section 1858. It is further claimed that Jones was not interested, in the sense of this section, that it requires an interest both in the controversy and in the property charged with the lien. Such a construction .cannot be admitted. It refers to classes of persons who are not affected by the proceedings, unless made parties. These are all persons interested in the controversy, and all persons interested in the property charged with the lien. In Evans v. Tripp, 35 Iowa, 371, it was held under this section that the rights of a junior mortgagee were not affected by the foreclosure of a mechanic’s lien to which he was not made a party. This case refers to State v. Eads, 15 Iowa, 114, and Shields v. Keys, 24 Id., 298, cited by appellant, and shows their inapplicability to this section. If a junior mortgagee is so interested in the controversy and in the property, that he has rights which are not affected by a foreclosure of a mechanic’s lien to which he is not made a party, no satisfactory reason can be given why the holder of a junior mechanic’s lien is not equally interested.' The fact that plaintiff did not file his lien until ■two days after Boarts & Swain commenced their action is not material.

2.-•• —: time of filing lien. Section 1851 of the Revision, as amended by Chapter 111, Ninth General Assembly, provides that the lien shall be filed within ninety days after all the material shall be •, , furnished or work done, but that a -failure to file ■within the ninety days shall not defeat the lien, except as to purchasers or incumbrancers in good faith, whose rights accrue after the ninety days and before the lien is filed. The spirit of this provision is that the mere furnishing of material is notice to all the world for ninety days that a lien is, or may be, claimed and alb persons who acquire any rights in the property during the ninety days take them subject to the prior right of the mechanic or material man to his lien. None .of the parties to the Boarts & Swain action acquired any rights after the expiration of the ninety days and before the lien was ■filed. The Boarts & Swain action was commenced eighty-six days after plaintiff furnished the last item of his account,, and two days thereafter, the plaintiff filed his claim for a lien. •Boarts & Swain were affected with knowledge of plaintiff’s rights, and they should have made him a party to their action if they intended to cut off or affect his lien. Our attention is called to the fact that section 1858 of the Revision is not contained in the Code of 1873. That is not material. Boarts & Swain prosecuted their suit under the Revision, and the respective rights of the parties were fixed before the Code was enacted. These rights are preserved by section 50 of the Code.

Besides, under the Code, section 2510, the action to enforce a mechanic’s lien is by equitable proceedings, and all parties interested may be made parties, independently of section 1858, and must be made parties before they can be affected by the decree.

3 _._. tender. III. Appellant further urges that the amount necessary to redeem is fixed, and that no reason is stated why a tender thereof was not made. The amount is fixed by the decree, but it is not shown that it was definitely

known when the action was commenced. Besides, we do not think that a tender, under the circumstances of this case, is a condition precedent to the right to institute the suit. It is quite reasonably apparent that a tender would have done no good, for the right to redeem is denied in the answer, and the whole controversy in the case regards the existence of that right. A court of equity, having control over the whole subject, may so mould the decree as to costs, and the conditions under which relief will be granted, as to fully guard and protect the interests of all parties. There is not the same necessity for tender in actions in equity as at law. See Hayward v. Munger, 14 Iowa, 516; Laverty v. Hall’s Adm’x, 19 Id., 526; Anson v. Anson, 20 Id., 55, and cases cited. We are fully satisfied with the decree below. As the time fixed by the court below for the payment of plaintiff’s claim by defendant has elapsed, a new day must be fixed for that purpose. A time should also be prescribed within which plaintiff shall redeem, or be barred of his rights.

A decree will be entered directing that the defendant, Dey, have the privilege of paying off the plaintiff’s claim and costs, within thirty days from the rendition of the decree.

If this be not done within the time prescribed, then the plaintiff shall redeem from Dey within sixty days thereafter, by paying off all liens prior to his own, as shown by the decree in the case of Boarts & Swain v. James R. Hartsock, and in the event of the failure of plaintiff to so redeem, all his interest in or lien upon the premises shall be barred and foreclosed.

The plaintiff may have final decree in this court, if he so elect.

Affirmed.