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

• Decision Date: 20 February 1935
• Docket Number: 42718.
• Citation: 258 N.W. 770,219 Iowa 630
• Parties: LINCOLN JOINT STOCK LAND BANK OF LINCOLN, NEB., v. BROWN et al.
• Court: Iowa Supreme Court

258 N.W. 770

219 Iowa 630

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

No. 42718.

Supreme Court of Iowa.

February 20, 1935

Appeal from District Court, Warren County; E. W. Dingwell, Judge.

In this action for foreclosure of a real estate mortgage, an application, under chapter 179 of the Acts of the Forty-Fifth General Assembly, for order that no sheriff's deed issue until March 1, 1935, was denied by the court, from which the defendants, appellants herein, have taken this appeal.

Affirmed.

C. H Miller, of Des Moines, for appellants.

Frank A. Peterson, of Lincoln, Neb., and Henderson & Wilson, of Indianola, for appellee.

RICHARDS, Justice.

Appellee brought this action to foreclose a real estate mortgage executed by appellants. There was a decree of foreclosure and a special execution sale. Thereafter, under the provisions of chapter 179 of the Acts of the Forty-Fifth General Assembly appellants filed an application that the court order that no sheriff's deed issue until March 1, 1935. To the application appellee filed a resistance, objecting on the ground that appellant Roy L. Brown was not the owner of the mortgaged premises sold on special execution and not entitled to the relief of said chapter 179. As facts sustaining the ground of objection it was alleged, in the resistance, that prior to filing his application the appellant Brown had been adjudged a bankrupt and his trustee in bankruptcy had sold the equity of redemption of the mortgaged land. Upon a hearing on the application and the resistance, the district court found that the application should not be allowed, on account of the above-mentioned objections set out in the resistance, and ordered that the application of appellants be denied, from which appellants have taken this appeal.

Appellants base their appeal on the proposition that they were in fact the owners of the mortgaged land and that the court below erred in denying appellants' application on the ground as found by the court, that the appellants were not such owners. To sustain this argument for reversal the appellants maintain that the sale of the equity of redemption by the trustee in bankruptcy was void and an absolute nullity because there was included the appellants' homestead in the lands sold by the trustee.

The materiality of this question of ownership arises from the fact that chapter 179 of Acts of the Forty-Fifth General Assembly extends to the owner of the real estate, and to no other person, the right to apply for an order setting ahead to March 1, 1935, the time for issuance of the sheriff's deed. See Prudential Ins. Co. v. Claassen, 217 Iowa, 1076, 252 N.W. 553, and Equitable Life Assur. Soc. of U.S. v. Kramer (I...