Lincoln Joint Stock Land Bank of Lincoln, Neb. v. Brown

• Citation: 278 N.W. 294,224 Iowa 1256
• Decision Date: 15 March 1938
• Docket Number: 44124.
• Parties: LINCOLN JOINT STOCK LAND BANK OF LINCOLN, NEB., v. BROWN.
• Court: United States State Supreme Court of Iowa

278 N.W. 294

224 Iowa 1256

LINCOLN JOINT STOCK LAND BANK OF LINCOLN, NEB., v. BROWN.

No. 44124.

Supreme Court of Iowa.

March 15, 1938

Appeal from District Court, Warren County; W. S. Cooper, Judge.

An action in foreclosure in which an extension of the period of redemption under the Moratorium Act of the 47th G. A. c. 78 was denied the defendant-appellant. The defendant appeals.

Affirmed.

E. S Thayer, of Des Moines, for appellant.

Henderson & Wilson, of Indianola, for appellee.

ANDERSON, Justice.

This appeal involves only the question as to the defendant-appellant's right to an extension of the period of redemption in a foreclosure action under the Moratorium Act of the 47th G. A. c. 78. A chronological statement of some of the pertinent facts seems necessary to an understanding of the issues presented.

On December 22, 1932, an action was commenced by the plaintiff-appellee against the defendant-appellant for the foreclosure of a mortgage covering real estate in Warren county, Iowa, and on the 4th day of January, 1933, judgment and decree was entered foreclosing the mortgage involved.

On February 15, 1933, the mortgaged property was sold under a special execution issued in the foreclosure proceeding to the plaintiff, bank.

On the 7th day of July, 1933, the defendant, Roy L. Brown filed a voluntary petition in bankruptcy and was duly adjudged a bankrupt.

On January 12, 1934, the appellant, Brown, filed a motion for an extension of his right of redemption under chapter 179 of the Laws of the 45th G. A. Upon the filing of this application for extension, the district court fixed the time and prescribed notice for hearing thereon, and provided in its order in so doing as follows: " It is hereby ordered that the sheriff of Warren County be, and he hereby is restrained from issuing a sheriff's deed to said premises prior to the hearing of the cause and the determination hereof. * * *"

Resistance was filed to the defendant's application for extension of time, and on the 7th day of March, 1935, the application for extension was denied by the trial court.

The order restraining the issuance of the deed, above quoted, was never formally dissolved except as it was automatically dissolved by the order entered in March denying the appellant's application for extension of time.

On the 17th day of March, 1934, sheriff's deed was issued under the foreclosure sale.

On April 26, 1934, the appellant appealed to the Supreme Court from the order denying his application for extension of time. As a result of which appeal this court on the 20th day of February, 1935, filed its opinion affirming the action of the lower court in denying appellant's application for extension of the time of redemption. See Lincoln Joint Stock Land Bank v. Roy L. Brown et al., 219 Iowa 630, 258 N.W. 770.

On February 22, 1935, the appellant filed another application for extension of the period of redemption under said foreclosure action to March 1, 1937, under the provisions of chapter 110 of the 46th G. A. This second application for an extension was never heard or determined by the trial court, although an order was entered fixing a time for hearing thereof.

Later an independent action was instituted in equity by the appellant herein, Roy L. Brown, against the appellee herein, Lincoln Joint Stock Land Bank, seeking to obtain an extension of the redemption period under the Moratorium Act and incidentally to enjoin the bank, the plaintiff in this action, from procuring a writ of possession under its foreclosure decree and sheriff's deed. This action was determined adversely to Brown, who was plaintiff in that action, and an appeal was prosecuted by him to this court.

On February 13, 1936, this court affirmed the ruling of the trial court in an opinion reported in 221 Iowa 42, 265 N.W. 115.

On February 23, 1937, the appellant filed in the district court, in the mortgage foreclosure case, a third application asking for an extension of the period of redemption to March 1, 1939, under the provisions of chapter 78 of the 47th G. A. Resistance was filed to this application by the appellee, and the court fixed a time for hearing and prescribed notice thereof.

On the 18th day of March, 1937, hearing was had on this last application resulting in an order dismissing the application, and from this order this appeal is prosecuted.

We can find no merit in any of appellant's contentions on this appeal. In the first place, the decision of this court on the former appeal, 219 Iowa 630, 258 N.W. 770, is res adjudicata as to the first of appellant's applications for continuance, and, secondly, under the pronouncements of this court in the cases of Mohns v. Kasperbauer, 220 Iowa 1168, 263 N.W. 833; Iowa-Des Moines National Bank v. Alta Casa Investment Co., 222 Iowa 712, 269 N.W. 798; Ditto v. Edwards, 276 N.W. 20, and First Trust Bank v. Albers, 277 N.W. 451, the period of redemption having expired and sheriff's deed having issued and no extension of the period of redemption having been granted under either of the two prior applications, the defendant-appellant had no right under the last Moratorium Act to an extension of the period of redemption under his application filed on February 23, 1937. Chapter 78 of the 47th G. A., the last moratorium act, specifically provides in section 2 that " in all foreclosure actions in which order has been entered extending the period of redemption to March 1, 1937, as provided by chapter 110 of the acts of the...