Prudential Ins. Co. of America v. Kraschel

• Decision Date: 07 April 1936
• Docket Number: 43279.
• Citation: 266 N.W. 550,222 Iowa 128
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. KRASCHEL et al.
• Court: Iowa Supreme Court

266 N.W. 550

222 Iowa 128

PRUDENTIAL INS. CO. OF AMERICA v. KRASCHEL et al.

No. 43279.

Supreme Court of Iowa.

April 7, 1936

Appeal from District Court, Shelby County; E. M. Miller, Judge.

A mortgage foreclosure, with application for continuance under the moratorium statute, which was refused by the district court.

Affirmed.

MITCHELL, HAMILTON, and KINTZINGER, JJ., dissenting.

Bennett Cullison and G. O. Hurley, both of Harlan, for appellants.

Smith & More, of Harlan, and Clinton B. Nasby and Quintard Joyner both of Omaha, Neb., for appellee.

ALBERT Justice.

Kraschel was the owner of a 240-acre tract of land involved in this proceedings. It was subject to a mortgage of $22,500, which bore date of May 29, 1926. On the 12th of July, 1927, Kraschel deeded this land to W. T. Shepherd. Shepherd died on the 20th of October, 1931, and his estate was opened on the 27th of November, 1931. This foreclosure suit was commenced on the 17th of August, 1933. A continuance was granted under the moratorium statute (chapter 115, 46th Gen. Assem.) on the 22d of September, 1933, continuing the cause to the 1st day of March, 1935. On the 28th of February, 1935, a second application was filed for continuance. This matter came on for hearing under this last application, and on the 7th day of May, 1935, the court entered an order denying further continuance, and ordered the cause for trial on its merits. The appeal involves the question of the order thus made by the court.

To a fair understanding of the question involved, the following is the fact situation as shown by the record.

W. T. Shepherd left a will which was duly probated. After directing the payment of his debts, in the second paragraph of his will he bequeathed certain Liberty bonds, of the value of $2,000, to the Protestant Episcopal church of Harlan, as a trust. In the third paragraph he named four parties and bequeathed to each of them the sum of $100. In the fourth paragraph he bequeathed to his wife $15,000, plus an allowance per month until the $15,000 was paid to her. In the fifth paragraph he bequeathed to his son, Allan R. Shepherd, his home residence in the city of Harlan, together with certain personal property. In the seventh paragraph he appointed his son, Allan Ramsey Shepherd, executor and trustee, and he gave, devised, and bequeathed all the balance and residue of his property real, personal, and mixed, remaining after the provisions for the foregoing devises and bequests, to his son, Allan R. Shepherd, as executor and trustee, giving unto him, as such executor and trustee, full power and authority to " collect and distribute the income from said residue, to sell and transfer either personal or real property, issue deeds of conveyance for any real property sold, to reinvest any funds coming into his hands and to otherwise manage, control and dispose of said residue without being required to resort to any order of court in doing any of the acts above described * * * but to hold, control and dispose of said residue in trust in the manner and for the purpose hereinafter set out." In the eighth paragraph, from the income of said residue the trustee was directed to pay $1,500 per year to the wife, Elizabeth Booth Shepherd, for the remainder of her natural life, payable in quarterly installments, etc.; also to pay all taxes and assessments against the home property during the natural lifetime of the wife, and to pay the balance and residue from the income from the estate, after the payments last above provided, unto himself, Allan Ramsey Shepherd, individually. In the ninth paragraph the executor and trustee was directed, after the death of the wife, to " pay and distribute all the rest of my estate" unto himself individually. This paragraph further provided that upon a showing made that the trustee retained in his possession sufficient property to yield the income required for the annuity to the decedent's wife, the trustee might distribute the residue of this estate individually to himself, provided a court of competent jurisdiction so found, etc.

This will was accompanied by a codicil which in no way affects the matters here under consideration.

The application for this second continuance was made in the name of A. R. Shepherd, Elizabeth Booth Shepherd, and A. R. Shepherd, executor of the will of W. T. Shepherd, asking for a continuance under chapter 115 of the Acts of the Forty-Sixth General Assembly. The aforesaid chapter provides that the application is to be made by " the owner or owners of such real estate," and that the application shall be granted unless good cause is shown to the contrary. The record in the case shows that at the time this order was entered there was about $26,600 due on this mortgage, drawing 8 per cent. interest. It is stipulated that the estate of William T. Shepherd is insolvent, and that there were about $30,000 in claims filed against said estate. It is also stipulated that Allan R. Shepherd has sufficient property from which he could refinance the mortgage involved herein; that no application has been made for the sale of the real property by the executor; that the executor has had one offer to purchase said land, the purchaser assuming and agreeing to pay the amount due on this mortgage, but no sum beyond that; that the other legatee and beneficiary of the estate of W. T. Shepherd, to wit, Elizabeth Shepherd, is not insolvent.

It will first be noted that this land, under the will, was devised to Allan R. Shepherd as executor and trustee, with the final remainder over to Allan R. Shepherd individually after the death of the wife. It will be noted that Allan R. Shepherd as trustee is not joined in this application. The statute says the " owner or owners of the land" must be joined in the application. The question is, Who are the " owner" or " owners" within the meaning of this statute?

In the case of Adams v. Beale, 19 Iowa 61, loc. cit. 68, on the question of right to redeem from tax sale, we said " In construing the redemption laws, the word ‘ owner’ is held to be a generic term, which embraces the different species of interest which may be carved out of a fee simple estate. * * * Where land has been mortgaged to secure a debt, and judgment creditors have liens upon it, and the land is in possession of a stranger to the title, whose possession is ripening into a right, each is an ‘ owner’ according to the extent of his interest or claim, and each has a right to protect his interest by a redemption from a tax sale. * * * Any right which in law or equity amounts to an ownership in the land; any right of entry upon it, to its possession or...