Moy v. Moy , 89 Iowa 511 ( 1893 )

Given, J.

In an action for the partition of said lot, wherein this plaintiff was defendant and this defendant was plaintiff, a decree was entered finding that this plaintiff owned the undivided eight fifteenths, and this defendant the undivided seven-fifteenths. It was also found and decreed as follows: “The court further finds that the plaintiff ought to pay to the defendant, Gustave Moy, by reason of a certificate of sale held by him, and executed to him by the sheriff of Woodbury county, Iowa, upon the sale of said premises under a decree of foreclosure of a mortgage executed by Celia Weir and husband to the Keene ¡Five Cents Savings Bank, seven fifteenths of the amount required to redeem said premises from said sale, as shown by said certificate. It is, therefore, considered, adjudged and decreed by the court that the said shares of the said parties, and their • interests, respectively, in said lands, be, and the same are hereby confirmed; that the plaintiff herein pay to the defendant, Grustave Moy, seven fifteenths of the amount required to redeem said premises from said sale, as shown from said sheriff’s certificate, and that such.payment, when made, shall operate as a release and satisfaction of the lien created by said mortgage and proceedings thereunder, to foreclose the same upon said interest ánd share of the plaintiff in said real estate.” Referees were appointed to sell the property. It is conceded that the appellant did not, and never intended to, take an appeal from that decree.

The certificate held by the appellant was upon a foreclosure sale under an outstanding mortgage, subject to which both these parties had their respective titles. No redemption having been made from that sale, the appellant received a sheriff’s deed, ánd it is by virtue of that deed that he asks to be quieted in the title as against the appellee. There are very conclusive reasons why he is not entitled to such relief. They were tenants in common, and, as said in Austin v. Barrett, 44 Iowa, 488: “It is well settled that one tenant in common can not purchase an outstanding incumbrance, and, after it matures into a title, set it up against his cotenant.” See, also, Sears v. Sellew, 28 Iowa, 501; Weare v. VanMeter, 42 Iowa, 128, and Fallon v. Chidester, 46 Iowa, 588. The decree in the former case determined the extent of the interests of the parties in said lot-. It found that the appellant, in addition to his eight fifteenths, was entitled to seven fifteenths of the amount required to redeem from the foreclosure. It was not decreed that the appellee should redeem from that sale, but that the appellant had that additional interest in the lot, and consequently in the proceeds of the sale that the referees must make. The plaintiff’s petition was properly dismissed. The judgment is therefore affirmed.