Tice v. Tice

• Decision Date: 05 April 1929
• Docket Number: No. 39171.,39171.
• Citation: 224 N.W. 571,208 Iowa 145
• Parties: TICE ET AL. v. TICE ET AL.
• Court: Iowa Supreme Court

208 Iowa 145

224 N.W. 571

TICE ET AL.

v.TICE ET AL.

No. 39171.

Supreme Court of Iowa.

April 5, 1929.

Appeal from District Court, Mahaska County; D. W. Hamilton, Judge.

Action in partition embracing suit against the Bankers' Life Company to quiet title. T. D. Tice, now deceased, and his wife, plaintiff Harriet A. Tice, gave a mortgage to the Bankers' Life Company on approximately 480 acres of land, of which 240 acres (fractional) is in Mahaska county and 240 acres adjoining in Jasper county. Suit to foreclose was brought in the district court for Jasper county, and decree of foreclosure rendered in the usual form declaring the debt and costs to be a lien upon all of the property. It was decreed “that a special execution issue against the above described mortgaged premises to make and satisfy said total sum and judgment and costs and accrued costs, and that the premises above described, or so much thereof as is necessary, be sold to satisfy the amount due with interest and costs, according to law, and in case of deficiency * * * that general execution issue.” It was decreed that “on and after the day of the sale under said special execution, that the defendants * * * be forever barred and foreclosed of all interest and equity in and to the above described mortgaged premises, except such rights of redemption as are provided by law, and if said real estate be sold and not redeemed, as provided by law, that a writ of possession issue to the Sheriff of this County commanding him to put the purchaser at said sale under the execution herein provided for in possession of said premises.” The decree described all the land in both counties, and in no wise discriminated between the tracts in the respective counties. Special execution was issued by the Jasper county clerk to the Jasper county sheriff, who under it levied on and sold to the Bankers' Life Company all the mortgaged premises including that part in Mahaska county. Sheriff's deed to the whole to the company was made by the sheriff of Jasper county. The mortgagor found a tenant for the Bankers' Life Company, to whom the Bankers' Life Company made a lease of the entire tract. About the time of expiration of the period of redemption, the mortgagor died intestate leaving surviving him three daughters, who with the widow are plaintiffs, and two sons, who with the Bankers' Life Company and the administrator are defendants. Plaintiffs' contention is that the Jasper county clerk had no authority to issue an execution to sell the Mahaska county land; that the authority of the Jasper county sheriff was confined to the limits of his own county; that he had no authority to sell the land situated in Mahaska county; that the sale is valid as to the Jasper county land, and thereby the judgment is satisfied in full and the mortgage discharged as to the Mahaska county land. The district court rendered judgment in favor of the Bankers' Life Company, and the plaintiffs appeal. Affirmed.Korf & Korf, of Newton, for appellants.

Devitt & Eichhorn, of Oskaloosa, and Ayres, Alberson & Nourse, of Des Moines, for appellees.

MORLING, J.

This is not a proceeding to set aside an execution or levy or sale thereunder, or to order resale for irregularity, nor is any question of notice involved, nor is it claimed that the decree of the Jasper district court is in any respect void. The sole contention of the plaintiffs, in substance, is that under the decree the clerk of the Jasper district court had no authority to issue an execution directing the sale of the Mahaska county land; that the Jasper county sheriff had no authority to levy upon or sell that land; that the authority of the Jasper county sheriff was confined to the limits of his own county and to property within that county, and his acts outside the limits thereof were without jurisdiction, and void.

[1][2] The mortgage created a lien on all of the property, on that in Mahaska county as well as on that in Jasper county. By statute no mortgage shall be foreclosed in any other manner than by action in court by equitable proceedings. Code 1897, § 4287; Code 1927, § 12372. Section 3493, Code 1897 (section 12374, Code 1927), requires the action for foreclosure to be brought in the county in which the property to be affected, or some part thereof, is situated. Foreclosure “is selling the property under the direction and in pursuance of an order of the court, by an officer thereof, or a person appointed for that purpose; and applying the proceeds of the mortgaged premises to the discharge of incumbrances according to priority, and paying the balance, if any, to the mortgagor.” Kramer v. Rebman, 9 Iowa, 114, 119. It “is * * * depriving the mortgagor of the right of redeeming a mortgaged estate. Strictly speaking, it does not occur, under our practice, until the sheriff's sale.” Schmidt v. Potter, 35 Iowa, 426, 428. Through foreclosure the court of equity proceeds against the particular mortgaged property, and decrees its sale. With respect to the foreclosure, the suit is in the nature of one in rem. McDonald v. Second National Bank, 106 Iowa, 523, 76 N. W. 1011. The district court is a court of general jurisdiction in chancery, and the Jasper district court had full jurisdiction of the parties, the cause of action, and the subject-matter. It is provided by section 4289, Code 1897 (section 12376, Code 1927), “when a mortgage or deed of trust is foreclosed, the court shall render judgment for the entire amount found to be due, and must direct the mortgaged property, or so much thereof as is necessary, to be sold to satisfy the same, with interest and costs. A special execution shall issue accordingly, and the sale thereunder shall be subject to redemption as in cases of sale under general execution.” By the next section, if there is a deficiency, a general execution may be issued. The court was required to direct the sale of the mortgaged property, or so much thereof as was necessary. The command of the statute is that to make such sale special execution shall issue. The sale under...