Harms v. Palmer
| Citation | 16 N.W. 574,61 Iowa 483 |
| Parties | HARMS v. PALMER ET AL |
| Decision Date | 20 September 1883 |
| Court | United States State Supreme Court of Iowa |
Appeal from Hardin District Court.
ACTION in chancery to enforce the alleged rights of plaintiff to redeem certain land, claimed by her as a homestead, from a sheriff's sale made upon a decree foreclosing a mortgage. The facts of the case appear in the opinion.
REVERSED.
S. M Weaver, for appellant.
Porter & Albrook, for appellee.
I.
No question arises in the case which requires a statement of the pleadings. There is no dispute as to the facts which are all set out in an agreed statement, upon which the case was tried in the court below. They are as follows:
Plaintiff's husband, Hiram S. Harms, purchased of defendant, Palmer, certain lands, and executed a mortgage thereon to secure seven promissory notes given for the purchase money of the property. The notes were due at different dates, and each provided for annual interest, and that the principal of the note became due upon default in payment of the interest. The mortgage provided that default in the payment of the principal or interest of any of the notes would cause the whole debt to become due, and that foreclosure of the mortgage might be at once enforced. The plaintiff and her husband went into possession of the lands, and occupied forty acres thereof as a homestead.
The first and second notes were paid at or soon after the maturity of each. Palmer transferred the third, fourth and fifth of the notes, and Morton, through such transfer, acquired them. No payments having been made upon the notes transferred by Palmer, or upon the two retained by him, all became due under the provision of the mortgage above stated.
Morton commenced a suit to foreclose the mortgage as to all the notes remaining unpaid, both his own and those held by Palmer, but the two notes not transferred by Palmer were withdrawn, and he commenced a separate action in the same court to foreclose the mortgage as to these notes. Plaintiff and her husband appeared in both actions and resisted the foreclosure.
A decree was entered in Morton's case, foreclosing the mortgage as to all the lands, except the homestead, and the case as to it was continued. All the lands covered by this decree were sold upon execution, and, at a subsequent time, a supplemental decree was rendered foreclosing the mortgage upon the homestead, and it was sold thereon at sheriff's sale to Morton.
At the same time the supplemental decree in Morton's case was entered, a decree was rendered in Palmer's case, foreclosing the mortgage as to all of the land, including the homestead. The decree ordered a special execution for the sale of the lands, and a general execution for any balance that might remain after such sale, and provides that, if all the land shall be sold upon Morton's foreclosure, a general execution may issue, without first issuing a special execution. Palmer made redemption of the homestead sold on the supplemental decree in Morton's case, on the ground that he was a junior lien holder under his foreclosure.
Plaintiff's husband having conveyed his interest in the homestead, she made application to redeem it from the sale on Morton's decree, by payment of the sum for which it sold, with interest and costs, but it was refused, the clerk claiming that she could not redeem unless she paid the whole of Palmer's judgment. Plaintiff deposited with the clerk the amount of the sale under Morton's supplemental decree, with interest and costs.
II. It will be observed that the only question in the case involves the right of Palmer to subject the homestead, after having been once sold upon the foreclosure, to a balance due upon the mortgage.
We are required, in the first place, to determine the rights of the parties under the decisions of the court. Plaintiff has no other or different rights than those held by her husband and herself before the conveyance to her by her husband. This court has held that the foreclosure of a mortgage...
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