Blair v. Hemphill

• Citation: 82 N.W. 501,111 Iowa 226
• Parties: BLAIR v. HEMPHILL ET AL. (TWO CASES).
• Decision Date: 14 April 1900
• Court: United States State Supreme Court of Iowa

111 Iowa 226

82 N.W. 501

BLAIR

v.HEMPHILL ET AL. (TWO CASES).

Supreme Court of Iowa.

April 14, 1900.

Appeal from district court, Adair county; James D. Gamble and A. W. Wilkinson, Judges.

Action in equity by a mortgagee to effect redemption from a prior mortgage which had been foreclosed. From a decree in defendants' favor, plaintiff appeals. Affirmed.H. E. Long, for appellant.

John A. Storey, for appellees.

WATERMAN, J.

These appeals are in the same case. In the first proceeding the appeal was taken from an order sustaining a demurrer to the reply. After this was done, the reply was amended by adding another division. A trial was then had on the merits, and plaintiff took a second appeal from an adverse decree. The controlling questions are the same in each case. Therefore we shall not attempt to distinguish the appeals further, in the course of what we have to say. The facts which give rise to the controversy are as follows: One Allie Clark, being the owner of the land in question, mortgaged it on September 25, 1883, to James L. Lombard, to secure payment of the sum of $5,000, with interest. This instrument was duly recorded. In October, 1886, Clark executed his promissory note to one C. B. Blair for the sum of $10,000. This note being guarantied by one Moore Conger, Clark executed to said guarantor a mortgage upon the land mentioned, to indemnify him. This mortgage, also properly recorded, is the one under which plaintiff is now asserting rights. The Polk County Savings Bank became the owner of the Lombard mortgage, and defendant Hemphill, through dealings with Clark, acquired an interest in the land. In March, 1889, the bank began foreclosure proceedings on its mortgage, but neither Moore Conger nor plaintiff was made a party thereto. Plaintiff also began an action early in 1889 to foreclose his mortgage, and in this proceeding the bank was not made a party. In August, 1889, a decree of foreclosure was rendered in the action brought by the bank, and a decree foreclosing plaintiff's mortgage was also entered at the same time. A special execution was issued under both decrees on the same day. The real estate was duly sold under the writ issued on the decree in favor of the bank on October 8, 1889, and plaintiff's execution was returned unsatisfied. The bank was the purchaser at this sale, but the certificate was afterwards assigned to defendant Hemphill, to whom a deed issued October 9, 1890. Thereafter Hemphill brought an action to quiet title against plaintiff, and a decree in his favor was rendered January 13, 1894. On December 23, 1897, this action was brought by plaintiff to redeem from the Lombard mortgage on the ground that his rights as a junior incumbrancer had never been cut off. It is apparent from this statement that, if the decree in the action brought by Hemphill against plaintiff to quiet title is effective, the latter has no standing in court. Of the many matters discussed in argument, we need consider but two, which are in the nature of objections to this decree.

2. First it is said that an action to quiet title will not lie against a mere lienholder; that Hemphill, in order to protect his title against plaintiff's claim, should have brought an action to foreclose the latter's right of redemption. In support of this contention plaintiff cites two decisions of this court, the first of which was rendered under the Code of 1851, and the other under the revision of 1860. A glance will serve to show that, by the terms of these statutes, the action to quiet title was materially different from what it is now, and has been since the adoption of the Code of 1873. In Fejervary v. Langer, 9 Iowa, 159, the case went off on the ground that the judgment was by default, and there was no allegation in the petition that the claims of defendants were not superior to that of plaintiff. In the opinion, however, we find this very significant language: “It is not to be denied that the claimant may resort to a court of equity to extinguish the lien of a judgment, and to have his title in the land quieted against disturbance by the owner thereof.” In Eldridge v. Kuehl, 27 Iowa, 160, while language is used to the effect that an action to quiet title will not lie against a mere lienholder, we must look to the issues to determine what force and effect should be given such an expression. The statement of the issues in that case, as given by the court, is as follows: “Ordinary action for the recovery of real property. * * * Answer in denial; also, averring title in defendant by virtue of a tax deed; also, setting up and relying on the statute of limitations.” While it is true that the provision for proceedings to quiet title appears in the revision of 1860 under the general head of “Actions for the Recovery of Real Property,” such action was specially provided for and regulated by sections 3602-3605 of that chapter; and it seems manifest, from the facts stated, that the action in the Kuehl Case was not brought under these sections. Indeed, it was in no respect equitable in its nature, for it was tried to a jury. But, if we were to concede that, under the Code of 1851 and the revision, this action would not lie, save against one claiming title, it does not follow that such is still the case. An action to quiet title is now an equitable proceeding in the nature of a remedy quia timet, and the rule is without exception that by bills of that character clouds of every description may be removed from titles. See cases cited in 17 Enc. Pl. & Prac. 277. Some force is claimed by appellant for the language of section 4223, which provides who may bring an action to quiet title. The section reads, “An action to determine and quiet the title of real property may be brought by any one, whether in or out of possession, having or claiming an...