Sayre v. Voort
| Decision Date | 17 November 1925 |
| Docket Number | No. 36607.,36607. |
| Parties | SAYRE v. VANDER VOORT ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jasper County; D. W. Hamilton, Judge.
Suit in equity, wherein plaintiff avers that he is entitled to the “right of possession” of certain real estate, from and after February 26, 1923, and until January 25, 1924. As against all defendants except Vander Voort he asks to quiet his title to such temporary “right of possession”; and as against Vander Voort he asks judgment for the rentals accrued during such period. The answers in effect denied the right of plaintiff, either in law or in fact, to any of the relief claimed. Upon trial had, decree was entered dismissing the plaintiff's petition, and he appeals. Affirmed.Henry Silwold, of Newton, for appellant.
Ross R. Mowry and Cross & Hamill, all of Newton, for appellees.
No dispute of fact is presented. The contention of plaintiff turns wholly upon a question of law. The plaintiff is the assignee of a judgment obtained October 21, 1921, by one Boyle against De Goey. De Goey was at that time owner of certain real estate upon which the Boyle judgment became a lien. This real estate was under previous incumbrance of two mortgages, for $35,000, and $19,000, respectively. In November, 1922, the second mortgage was foreclosed. Boyle was party defendant to such foreclosure suit. Pursuant to the foreclosure decree, the land was sold under special execution on January 25, 1923.
On December 13, 1921, De Goey leased the land to Vander Voort for the term of three years beginning March 1, 1922. The rent stipulated was partly in crop share and partly in cash. Vander Voort executed notes for the cash rent, and took possession under his lease on March 1, 1922. In June, 1922, the rent notes were sold by De Goey to defendant Smorenberg. On December 30, 1922, the balance of rent due under the lease was assigned by De Goey to defendant Stubenraugh. such was the chronology of the case up to the date of the foreclosure sale, January 25, 1923.
On January 26, 1923, the plaintiff, as assignee of Boyle, caused general execution to issue under his judgment and a levy to be made upon De Goey's “right of possession” during the year of redemption. On February 26, 1923, sale was had under this execution, and plaintiff became the purported purchaser of such “right of possession.” On January 30, 1923, De Goey executed a deed for such real estate to the defendant Shankland.
The contention for the plaintiff is, in substance, that a landowner's “right of possession” of his real estate during the year of redemption is in and of itself a property right, and is distinct and severable from the title, and is subject to execution sale as such. He also contends that such property right is an interest in real estate within the meaning of the statute, and that his judgment was a lien thereon at all times since its rendition, and that he thereby takes priority over all rights acquired subsequent to the date of the judgment. That the plaintiff's judgment was a lien upon De Goey's real estate and upon his full interest therein (in the absence of homestead) goes without saying. That it was subject to the prior incumbrances is conceded. That the enforcement of such lien against the real estate was subject to statutory procedure, and to all the limitations of such procedure, is also plain. Does it follow that a judgment creditor may carve out of the title of his debtor a temporary “right of possession” for one year, or for more or less, and sell the same under execution as property separate and distinct from the land itself or the title thereto? The right of redemption and the “right of possession” during the year of redemption are incidents of ownership of the land. Ownership carries with it the “right of possession” and the right of redemption from incumbrances. While these rights differ in their nature and are not identical, yet both are parts of the same thing, and that is the title of the judgment debtor. Each of them is the creature of a merciful statute which comes to the relief of the hard pressed debtor and stays the hand of a creditor for 12 months after an execution sale. Neither of them is an estate which can be carved out of the larger estate at the will of a creditor. The owner had the “right of possession” before the foreclosure sale. Under the statute, that “right of possession” was extended for him for 12 months after the execution sale. Granted that the plaintiff had a lien and that he had a statutory right to execution, and to levy such execution upon the debtor's land to the full extent of the debtor's interest therein, yet this would only be a sale of the land subject to superior incumbrances. The proceeding would be purely statutory. The same statute which gave to the owner the “right of possession” for 12 months after the foreclosure sale gave him likewise the “right of possession” for twelve months after plaintiff's sale under general execution. With certain specified exceptions, there is no provision in our statute for the sale of real estate under execution, or any interest in real estate, except it be subject to the right of redemption and possession for the period of 12 months.
In Wissmath Packing Co. v. Mississippi River Power Co., 179 Iowa, 1309, 162 N. W. 850, L. R. A. 1917F, 790, we had occasion to consider the question of the power of the owner himself to carve the right of redemption, as a separate estate, out of his larger estate of ownership, and we held adverse to such a contention. In that case we said:
“The parties dispute in argument whether the plaintiff's so-called ‘right of redemption’ was ‘other property,’ within the meaning of the congressional act. The plaintiff's theory of the case carves out of the fee-simple estate the ‘right of redemption,’ as being plaintiff's distinctive and exclusive property. The defendant contends that such ‘right of redemption’ is not ‘land or other property,’ within the meaning of the congressional act. Defendant also contends that, under the rule of ejusdem generis, the term ‘other property’ must be construed to refer to landed property; whereas the plaintiff contends that the ‘right of redemption’ is an interest in real estate, and in any event is ‘property’ and that the rule of ejusdem generis has no application. The packing plant was land. The plaintiff was the owner of it in fee simple. If the water damaged it, it was a damage to the land. The fact that the plaintiff had incumbered its title with a mortgage did not change its relation to the fee title. By the terms of the mortgage, it had a right to pay the debt and discharge the lien at any time. Independent of the terms of the mortgage, it had such a right as a matter of equity.' This was its ‘right of redemption.’ This right would continue...
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