Starits v. Avery
| Decision Date | 10 May 1927 |
| Docket Number | 37971 |
| Citation | 213 N.W. 769,204 Iowa 401 |
| Parties | VENCIL STARITS, Appellant, v. THOMAS AVERY, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 1, 1927.
Appeal from Linn District Court.--F. L. ANDERSON, Judge.
Action at law against the defendant, as sheriff of Linn County, for the conversation of certain personal property belonging to plaintiff, by virtue of a writ of general execution issued upon a deficiency judgment in a proceeding to foreclose a real estate mortgage against the plaintiff, as a mortgagor. The opinion states the facts. Jury was waived by consent of counsel, and the cause was tried to the court on an agreed statement of facts. The trial court dismissed the plaintiff's petition, and taxed the costs to the plaintiff. From the judgment entered the plaintiff appeals.
Affirmed.
Charles L. Benesh, for appellant.
Johnson Donnelly & Lynch, for appellee.
DE GRAFF, J.
A question of law is presented on this appeal. The facts are stipulated. Plaintiff is the owner of the equity of redemption in certain real estate. The defendant is the sheriff of Linn County, Iowa. The action is for conversation of plaintiff's crop-share of grain raised on plaintiff's farm by his lessee during the period of redemption.
The story, briefly told, is that one Eliza Jane Kerns was the payee of a note of which the plaintiff was one of the makers, and she owned a real estate mortgage executed by plaintiff to secure the payment of the debt evidenced by said note. Plaintiff failed to pay his debt. The mortgagee (Mrs. Kerns) commenced suit, August 8, 1924, to foreclose the mortgage. Decree was entered. The real estate in question was sold in lawful manner under special execution, February 20, 1925, but the sale did not satisfy the mortgage indebtedness. A deficiency judgment was entered against the plaintiff herein. Subsequently, a general execution issued against plaintiff, and the defendant sheriff made levy upon certain harvested grain which represented the crop-share of rent to the plaintiff-landlord for the year 1925. Plaintiff served notice to release the levy, which caused the sheriff to call for an indemnifying bond, which was furnished. Thereupon, the sheriff proceeded to sell the harvested grain, 702 bushels of oats and 145 bushels of wheat, the agreed value of which was $ 466 at the time of the sale.
The plaintiff's position and sole contention and claim on this appeal may be found in the recitals of his affidavit attached to his notice to the sheriff to release the levy. These recitals, in substance, are: (1) That he is the owner of the fee-simple title to the premises sold by the sheriff in a foreclosure action entitled Eliza Jane Kerns v. Vencil Starits et al.; (2) that a deficiency judgment was rendered against the defendant therein; (3) that, by virtue of the statute (Section 11774, Code of 1924), he had the right to the possession of said premises, therein foreclosed, for a period of one year from the date of the foreclosure sale, and the right to enjoy said possession thereof and the rights incidental thereto, consisting of the rents, incomes, and profits of said land during said time; (4) that the property levied upon consisted of personal property raised upon said mortgaged premises during the statutory period of redemption and his right to possession; (5) that the levy was made by reason of the deficiency judgment rendered in said cause for the same and identical debt upon which said mortgage foreclosure was based; and that "said personal property so levied upon is exempt to me by virtue of the right of possession inuring to me as to said premises for the period of one year from the date of the sale thereof under said judgment and decree of foreclosure."
There is no dispute in the record as to what took place; and, although the legal principle involved sounds elementary, we have not found, nor do counsel offer, any decision bearing directly on the factual side.
In the last analysis, the question for decision calls for an interpretation of Section 11774, Code of 1924, which reads:
"The debtor may redeem real property at any time within one year from the day of sale, and will, in the meantime, be entitled to the possession thereof; and for the first six months thereafter such right of redemption is exclusive."
The term "equity of redemption" has a fairly well defined meaning in law. In Iowa it is a statutory right ( Kramer v. Rebman, 9 Iowa 114), and is fundamentally a different legal concept from what was known as "equity of redemption" at common law. Under the statute, it is the right of a judgment-debtor to regain his estate which he has lost by sale under process. At common law, it is the right the mortgagor had, prior to foreclosure, to discharge the indebtedness and thus clear his property from the incumbrance of the mortgage. 42 Corpus Juris 352, Section 2080.
Under the strict common law, the title in the mortgagee became absolute, upon failure of the mortgagor to meet the condition of the defeasance, and the chancellor fixed a new date for the mortgagor to comply with the condition of the mortgage.
Under the statute, the equity of redemption comes into being only after the foreclosure sale, and the period of time for redemption is fixed by the statute. Arnold v. Black, 204 Ala. 632 (87 So. 170).
The term "possession" means the control or custody of a thing for occupation and enjoyment....
To continue reading
Request your trial