Equitable Life Ins. Co. of Iowa v. McNamara
| Decision Date | 05 April 1938 |
| Docket Number | 44117. |
| Citation | 278 N.W. 910,224 Iowa 859 |
| Parties | EQUITABLE LIFE INS. CO. OF IOWA v. McNAMARA. |
| Court | Iowa Supreme Court |
Appeal from District Court, Webster County; Sherwood A. Clock Judge.
An appeal from an order refusing to grant extensions of redemption period under the Acts of the 46th and 47th G. A. The pertinent facts appear in the opinion.
Reversed and remanded.
Carl M. Adams, of Des Moines, and Alan Loth, of Fort Dodge, for plaintiff-appellee.
Breen & Breen, of Fort Dodge, for defendant-appellant.
An action in foreclosure was commenced in the district court of Webster county, Iowa, in June, 1934, by the plaintiff appellee, seeking to secure judgment and foreclose a mortgage of approximately $25,000 upon 354 acres of land in Webster county, Iowa. The testimony as to the value of the land ranges from $32,000 to $43,000, with probably the weight of the evidence fixing the value at approximately $36,000. An application for continuance under the provisions of the so-called Moratorium Act of the 45th Gen. Assem. c. 179 asking for a continuance to March 1, 1935, was filed by the defendant. The plaintiff resisted the application, and, upon a hearing thereon on December 10, 1934, Judge O. J. Henderson of that district granted the continuance. During the hearing on the application for this continuance, the defendant McNamara, paid into the clerk's office the sum of $1,428.46 as the proceeds from the sale of his share of the corn raised upon the mortgaged premises during the 1934 season. There were some other items of income from the farm including the sale of some hay, oats, and some cash rent amounting to something like $500, which had been collected and appropriated by the defendant prior to the foreclosure action and which total amount the trial court permitted the defendant to retain. The plaintiff, Insurance Company, promptly appealed from the order granting this continuance, and upon a disposition of the appeal by this court the action of the trial court in granting the continuance was affirmed, and upon rehearing such affirmance was again approved. Equitable Life Insurance Co. v. McNamara, 220 Iowa 297, 259 N.W. 231, 262 N.W. 466. The trouble with the further disposition of the case occurred by reason of a misinterpretation of Justice Parsons' opinion filed in the case referred to. The opinion does not hold that the trial court erred in granting the continuance in the first instance and only questions and discusses the propriety of the trial court in its dealing with the disposition of the rents and profits of the land during the 1934 season, and in effect held that by reason of a chattel mortgage clause or provision contained in plaintiff's real estate mortgage that the plaintiff was entitled to take possession of and appropriate all of the crops produced upon the land after the commencement of the foreclosure proceeding and that the moratorium law could not and did not apply to such proceeds. Upon the filing of the procedendo in the case appealed, the plaintiff, Insurance Company, filed a motion to modify the former order of continuance, which motion was sustained, and an order was entered requiring the defendant, McNamara, to pay into the clerk's office the sum of $511.35 covering the items of rent collected by the defendant prior to the commencement of the foreclosure action and provided in the modified order that unless this additional amount was paid into the clerk's office within thirty days or on or before November 25, 1935, the continuance would be revoked. This modified order was not warranted by the Parsons' opinion. However, the defendant being unable to raise the $511.35 within thirty days, the Insurance Company filed a motion for a termination of the order of continuance and for a decree of foreclosure. This motion was sustained and decree of foreclosure was entered. The land was sold under a special execution on the 27th day of January, 1936. It may be noted here that at the time of entering judgment the presiding judge, Hon. O. J. Henderson, commented that he did not know what Justice Parsons' opinion meant, but that another judge, Hon. T. G. Garfield, had by the order modifying the order of continuance interpreted the opinion and that he, Judge Henderson, was bound by such interpretation and by the order modifying the order of continuance.
On January 11, 1937, sixteen days prior to the expiration of the statutory period of redemption, the defendant, McNamara filed application for extension of the redemption period to March 1, 1937, under the provisions of the Acts of the 46th Gen.Assem., c. 110. Resistance was filed to this application based upon several grounds, among which was: (1) The application was not properly made because it was not accompanied by any court order or notice; (2) that the foreclosure decree adjudicated the extension of the redemption period and that it could not be altered by any order under the moratorium law; (3) that the continuance had been terminated by reason of the failure of McNamara to pay the approximate sum of $500 as provided in the amended order of continuance; and (4) because having revoked the order for continuance under the first Moratorium Act, Acts 45th Gen.Assem. c. 179, the defendant was barred from seeking additional relief under the Act of the 46th Gen. Assem. c. 110. The hearing on this second application was commenced on February 9, 1937, before another of the judges in that district, the Hon. Sherwood A. Clock. Upon this hearing the court records of the prior proceedings were introduced and some testimony in reference to the value of the real estate involved and, as we have indicated, it is fair to conclude that such testimony showed the value of the land to be between $5,000 and $10,000 in excess of the amount due under the mortgage. After the evidence was introduced the matter was taken under advisement by the court and was decided by the court on March 15th, following, and the application for the continuance was denied. During the interim between the commencement of the hearing and the termination thereof, the defendant paid into the office of the clerk the $511.35 with approximately $50 interest being the balance of the proceeds from the farm during the season of 1935, and with this payment the plaintiff, Insurance Company, had received every dollar they had coming from the farm together with accrued interests and costs from the day the foreclosure proceeding was started. The court in refusing to grant the extension to March 1, 1937, apparently based his decision on two grounds: First, that the court had no jurisdiction to grant an extension for the reason that the decree of foreclosure fixed the period of redemption to one...
To continue reading
Request your trial