First National Bank v. Campbell , 123 Iowa 37 ( 1904 )

Ladd, J.

Campbell’s judgment attached as a lien on Claussen’s land when rendered in 1892. That lien was not affected by his conveyance to the First National Bank of New'ton in 1893. Was the land relieved from this lien by the decree entered at the same time V It is to be borne in mind that Campbell was not made a party to the supplemental petition of the bank, in which some relief appears to have been sought as owner of the land. The decree, in so far as it affects his lien, must be construed with reference to the bank’s cross-petition, in which the execution of two notes of $2,500 each, bearing interest, one of which was due, and of mortgages on the land in controversy by Claussen to it, was alleged; also that Campbell and others had judgment against Claussen inferior as liens to said mortgages, and praying judgment for the amount due, decree foreclosing the equity of redemption of all defendants, declaring a lease void, appointing a receiver, and directing that special, and, if necessary, a general, execution issue, and also asking for general equitable relief. The manifest object was the foreclosure of the mortgages, and the relief sought against Campbell was incidental to effecting this purpose. Keeping in mind this cross-petition, let us examine the decree entered. It did not foreclose either of the mortgages but declared the equity of redemption of Campbell barred and foreclosed unless he should make redemption by the payment of the Henderson mortgage and the mortgages executed by Claussen to the First National .Bank of New-ton, Iowa, as “provided by law, and within the time fixed by law.” But no relief whatever was sought by Henderson, or in his behalf. That portion of the decree is void. Had there been a foreclosure of the mortgage to the bank, the last portion of the decree would be intelligible. But foreclosure of the mortgage was abandoned, and the only relief appropriate was the declaration of the order in which the liens attached. Certainly, there was no occasion for redemption, one from the other, so long as the sale of the land under none seeking relief was contemplated. Indeed, in the absence of a sale, the law makes no provision for a redemption, as it is unnecessary for the protection of the parties or their liens. If the decree ■were to be construed as requiring Campbell to take up the mortgage within a specified time, it is difficult to see how he could have done so without its satisfaction. This would have left him without security on the land for the amount paid. The court could not have intended to compel him to take up the mortgage when such a course was unnecessary for his or the bank’s protection, and might involve him in loss. The decree should be construed, if permissible. in its language, so as to guard the rights of all parties. This may be done if it be said to fix the priority of liens and exact, on a foreclosure, a redemption from the subsequent sale in the manner and within the period fixed by law for creditors generally. This is the only redemption “provided by law” and the only time “fixed by law.” If the decree were to bo construed as contended by appellee, there must be imputed to the court entering it the purpose of absolutely cutting off the lien of Campbell’s judgment without any corresponding benefit to the mortgagee as such. The phrases referrecl to add little or nothing to the decree, and, as the manner of redemption in the absence of sale is not • defined by statute, nor the time limited, the court could not have intended to terminate all right of redemption in utter disregard of Campbell’s lien. Redemption as “provided by law and within the time fixed by law,” in a case like this, in which the foreclosure of mortgages has been sought, has a well-defined meaning, and ought to be construed to have reference to redemption from sheriff’s sale and within the period allowed judgment creditors. In all the authorities relied upon by appellee there was a sheriff’s sale. The Henderson mortgage has been voluntarily paid and canceled. The petition contains no claim for an accounting. As the lien of the judgment has not been terminated, the court erred in enjoining the sale. — Reversed.