Strong v. Burdick

• Decision Date: 12 December 1879
• Citation: 3 N.W. 707,52 Iowa 630
• Parties: J. C. STRONG AND OTHERS, APPELLANTS, v. M. V. BURDICK AND OTHERS, APPELLEES.
• Court: Iowa Supreme Court

52 Iowa 630

3 N.W. 707

J. C. STRONG AND OTHERS, APPELLANTS,

v.M. V. BURDICK AND OTHERS, APPELLEES.

Supreme Court of Iowa.

Filed December 12, 1879.

Appeal from Winneshiek district court.

Action in equity to foreclose a mortgage, and to have the same decreed to be the prior lien, and also to set aside a decree and judgment under which the defendant Gill claims certain rights. Judgment for the defendants, and plaintiffs appeal.E. E. Cooley, for appellants.

Willett & Willett, for appellee.

SEEVERS, J.

The facts are that in November, 1868, John T. Clark, being the owner of the premises therein described, executed a mortgage to O. J. Clark. This mortgage was assigned to the defendant Gill. In 1869 John T. Clark sold the mortgaged premises to Burdick and Patterson, subject to the payment of the O. J. Clark mortgage, the payment of which they assumed. To secure the payment of the purchase money, Burdick and Patterson executed a mortgage on said premises, which has become the property of the plaintiffs, and which they seek to foreclose in this action and have declared the prior lien.

In 1874, Burdick and Patterson conveyed the premises to Sacket, who executed to them a mortgage to secure the purchase money. Burdick and Patterson transferred to Gill a portion of the indebtedness secured by this mortgage, and stipulated that any payments made thereon should apply as payment of the O. J. Clark mortgage. Afterwards Gill commenced an action against Sacket, Burdick, and others, to foreclose both of said mortgages in the same proceeding. Judgment was entered against Burdick and others for the amount due on the O. J. Clark mortgage, and foreclosing the same. There was also rendered a judgment against Sacket for the amount of the indebtedness secured by the mortgage executed by him, which had been transferred to Gill, and also foreclosing said mortgage. A sale of the premises was directed, and that after the O. J. Clarke mortgage was satisfied the balance of the Sacket judgment, if realized, it was directed should be paid into court for the use of Burdick and Patterson.

An execution was issued which recited the judgment against Burdick and others, and also the judgment against Sacket, and directed the sheriff to sell the mortgaged premises, or so much thereof as was necessary to satisfy the latter judgment. The premises were sold under said execution, and Gill became the purchaser, and at the proper time the premises were conveyed to him by the sheriff. The plaintiffs were named as defendants in the foreclosure proceeding brought by Gill, and the decree and sale cut off their rights under their mortgage. This is the decree they ask to have set aside, and the relief asked was granted, because they had not been served with notice of the action. But the court held that the plaintiffs' mortgage was junior to the O. J. Clark mortgage, and required them to redeem therefrom. The court also held the plaintiffs must pay certain taxes paid by Gill. Of so much of the decree as requires them to redeem, and charging them with the payment of taxes, the plaintiffs complain. In relation to...