Nelson v. First National Bank of Jewell
| Decision Date | 17 March 1925 |
| Docket Number | 36563 |
| Citation | 202 N.W. 847,199 Iowa 804 |
| Parties | ELMER W. NELSON, Appellee, v. FIRST NATIONAL BANK OF JEWELL, Appellant |
| Court | Iowa Supreme Court |
Appeal from Hamilton District Court.--G. D. THOMPSON, Judge.
ACTION to cut off equity of redemption under mortgage foreclosure sale. Plaintiff was granted the relief prayed for. Defendant appeals.
Affirmed.
Martin & Alexander, for appellant.
Henderson & Jones, for appellee.
I.
On the first day of May, 1922, a decree was entered in the Hamilton County district court foreclosing the mortgage of the plaintiff against a quarter section of land in that county. Execution was issued, and the land sold. Plaintiff bought at the foreclosure sale, and subsequently took deed. It was then discovered that there was an outstanding mortgage junior to the one foreclosed by the plaintiff, which had been duly assigned to the First National Bank of Jewell Junction, Iowa and this bank was not made party defendant to the foreclosure proceedings. The mortgage foreclosed by the plaintiff was a second mortgage, and that held by the bank was third; the first mortgage being for a principal sum of $ 30,000. On the discovery of the failure to make the bank a party defendant this action was instituted, to cut off the equity of redemption of the First National Bank; and, as said, the district court granted the relief prayed for, and, in a judgment dated January 10, 1924, terminated the right of the appellant to redeem on April 1, 1924.
The appellant first raised the question that this action is not maintainable because of the rule that a party cannot split his cause of action and try it piecemeal,--which rule is salutary, and well recognized by this court, but has no application to the present action. It applies only where the several actions are between the same parties. That this is the proper method to cut off the right of redemption of the defendant is fully recognized. See Ten Eyck v. Casad & Rowley, 15 Iowa 524; Shaw v. Heisey, 48 Iowa 468; Evans v. Atkins, 75 Iowa 448, 39 N.W. 702. Of course, it goes without saying that a junior mortgagee who is not made a party defendant to the foreclosure of a senior mortgage continues to have the right of redemption, under Section 4046 of the Code of 1897.
The first question seriously raised by the appellant herein is that it, not having been made party to the foreclosure when the court in this case entered judgment holding that it must redeem by the first of April, should have been given the full statutory period of nine months for redemption.
It is to be noted that sixteen months intervened between the judgment entry foreclosing plaintiff's mortgage and the time this action was commenced. During this time, of course, defendant did not redeem. When the judgment entry was entered in this case on January 10, 1924, as said, the court gave defendant until the first of April following, to redeem. It chose not so to do, but appealed, and presumably has at this date not exercised a right of redemption.
As shown by the cases above cited, the plaintiff had a right to maintain this action, and the lower court had a right to enter decree compelling the defendant to exercise its right of redemption if it chose so to do. It is, to our minds, equally true that, at the time the court entered the decree in this matter, he had a right to fix and determine the time within which defendant should exercise that right.
This seems to be the first case where this particular question has been raised in this state. While there are numerous cases in which the right to exercise this redemption is summarily cut off by the decree, such ruling seems never to have been appealed from; so those are of little aid in the determination of this question.
Having determined that the court had power to compel the defendant...
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Nelson v. First Nat. Bank of Jewell
... ... Execution was issued and the land sold. Plaintiff bought at the foreclosure sale and subsequently took deed. It was then discovered that there was an outstanding mortgage junior to the one foreclosed by plaintiff, which had been duly assigned to the First National Bank of Jewell Junction, Iowa, and this bank was not made party defendant to the foreclosure proceedings. The mortgage foreclosed by the plaintiff was a second mortgage, and that held by the bank was third, the first mortgage being for a principal sum of $30,000. On the discovery of the failure to ... ...