REDEMPTION BY GRANTEE OF MORTGAGOR AFTER JUNIOR LIEN-HOLDER'S RIGHT TO REDEEM IS BARRED, EFFECT OF. When a mortgagor, after a senior mortgage is foreclosed, and after the right of a junior mortgagee to redeem from the foreclosure sale is barred by lapse of time, conveys his interest in the land mortgaged, his grantee may redeem without removing such bar, and thus perfect in himself the title to the land sold. Such grantee will then hold the land discharged from the lien of the junior mortgage, and may maintain an action in equity to quiet his title as against such lien.

ACTION in equity to restrain the enforcement of a mortgage. A demurrer interposed to the petition having been overruled, the defendant, Peter Funk, elected to stand upon his demurrer, whereupon judgment was rendered in favor of the plaintiff, and the defendant appealed. Other facts are stated in the opinion.

M. D. O'Connell, for the appellant.

O. J. Jolley, for the appellee.

ROBINSON, J. The facts admitted by the pleadings which are material to a determination of this case are substantially as follows: One James J. Gordon was the owner of the eighty. acre tract of land in controversy from the eighth day of March, 1884, until the fifteenth day of November, 1886. On the date first named, he executed a mortgage on the land in favor of the Etna Life Insurance Company, to secure the sum of six hundred dollars. On the seventeenth day of the same month he executed a second mortgage to the defendant Funk, to

secure the sum of two hundred dollars. On the fifteenth day of November, 1886, he conveyed one forty-acre tract of the land to his wife, and on the third day of February, 1888, he conveyed to her the remainder. The mortgage to the Etna Life Insurance Company was foreclosed in April, 1887, the defendant Funk being made a party to the foreclosure proceedings; and on the twentieth day of June, 1887, all the land was sold to the Etna Life Insurance Company to satisfy the judgment of foreclosure. On the twelfth day of May, 1888, Mrs. Gordon and her husband conveyed the land to plaintiff, and on the eighteenth day of the next June, he redeemed the land from the foreclosure sale by paying to the clerk of the district court of Calhoun County the amount required for that purpose. The plaintiff seeks to have the defendant Funk enjoined from enforcing his mortgage against the land, and asks to have his title quieted as against that mortgage. As a ground of demurrer, the defendant Funk alleged that the averments of the petition do not entitle plaintiff to the relief demanded.

In Crosby v. Elkader Lodge, 16 Iowa, 400, it was held that real estate sold in partial satisfaction of a judgment lien thereon was subject to a second sale to satisfy the remainder due on the judgment, after redemption from the first sale by a purchaser of the interest of the judgment debtor. It was said that "if the debtor or his grantee redeem land which had been sold in part satisfaction of a subsisting judgment, the property at once becomes liable to satisfy the unpaid balance of the execution from the moment of such redemption." That decision, so far as it was applicable to redemptions made by the grantee of a judgment debtor, was in effect overruled by subsequent decisions: Clayton v. Ellis, 50 Iowa, 590, and cases therein cited. There is not entire harmony in the language of some of the cases in regard to the rights of junior lien-holders, and the effect of redemptions, and both parties to this appeal rely with much apparent confidence upon decisions of this court as supporting their respective claims. But it will be found that the conflict is chiefly between statements in the nature of dicta, rather than between the decisions on questions actually involved. Thus in Clayton v. Ellis, 50 Iowa, 590, it was said that "the better rule is, that the lien of the judgment as to the unsatisfied balance on the real estate sold is as to all persons and in all cases divested by the sale"; but the question actually involved and determined was, "whether the

"

holder of an unsatisfied balance of a judgment can redeem from an execution sale made under the same judgment," and it was answered in the negative. That decision was approved in Hayden v. Smith, 58 Iowa, 285; Todd v. Davey, 60 Iowa, 534. That the lien of the judgment would not be divested as to all persons" by the sale was held, in effect, in Harms v. Palmer, 73 Iowa, 346, 5 Am. St. Rep. 691, Campbell v. Maginnis, 70 Iowa, 589, Peckenbaugh v. Cook, 61 Iowa, 478, and other cases; for it was said in the cases cited, that if the judg ment debtor redeem, the land redeemed would become subject to the lien of the unpaid portion of the judgment. But there is a marked difference between the case of a redemption by the judgment debtor and that of a redemption by his grantee. It is the policy of the law to secure to the debtor, as nearly as is practicable, the full value of his property sold on execution. If the execution creditor fail to bid for the land sold a just amount, the debtor should be permitted to transfer his interest to another for a fair consideration; and if his grantee redeem, the execution creditor has no right to complain, for he might have bid for the land a larger sum. Nor is a junior lien-holder prejudiced by such a transfer. It does not affect his right to redeem within the time given him by law, and if he is not willing to give more for the land than the amount for which it was sold, he should not prevent the debtor from realizing what he can for his property. Where the debtor redeems, and thus restores to his estate land subject to execution for other debts, there is more ground for holding that it may again be sold to satisfy the remainder of the unpaid judgment. But however that may be, we are of the opinion that the grantee of the execution debtor, who, as in this case, acquires the interest of his grantor after the right of a junior lien-holder to redeem is barred by lapse of time, may redeem without removing such bar, and thus perfect in himself the title to the land sold. Our conclusion has support in the following cases: Harms v. Palmer, 73 Iowa, 446; 5 Am. St. Rep. 691; Campbell v. Maginnis, 70 Iowa, 590; Peckenbaugh v. Cook, 61 Iowa, 478; Escher v. Simmons, 54 Iowa, 275; Clayton v. Ellis, 50 Iowa, 590.

The judgment of the district court is affirmed.

MORTGAGES-REDEMPTION.

As to who may redeem from foreclosure, see note to Horn v. Indianapolis Nat. Bank, 21 Am. St. Rep. 245-249, and especially at page 246, where the right of grantees of the equity of redemption to redeem is discussed.

TOMLINSON v. LITZE.

[82 Iowa, 32.]

JUDGMENT OF JUSTICE OF PEACE NOT ENTERED IN TIME VOID.When a justice of the peace fails to enter a judgment until more than ninety days after a verdict has been returned in the case, a judgment then ren. dered by him is without jurisdiction and void; and if the judgment debtor does not hear of the entry of such judgment until more than a year after it is made, he may then maintain an action in equity to have the judgment canceled.

ACTION in equity to set aside and cancel the record of an alleged judgment. Judgment was rendered in favor of the defendant, and the plaintiff appealed. Other facts are stated in the opinion.

Welch and Welch, for the appellant.

No appearance for the appellee.

ROBINSON, J. The record submitted to us discloses the following facts: In August, 1886, the defendant commenced an action against plaintiff before one G. W. Halsey, a justice of the peace, to recover the sum of one hundred dollars. On the twenty-sixth day of that month there was a trial by jury, which resulted in the return of a verdict on the same day, in favor of the plaintiff in that action, for the sum of thirty-five dollars. On the eleventh day of September, 1886, and again on the sixteenth day of that month, the defendant in that action went to the office of the justice with an appeal bond for the purpose of taking an appeal, but found that judgment had not been entered. On the third day of November, 1886, an attorney for plaintiff visited the office of the justice and found that no judgment had then been entered. The justice moved out of the township in which he resided when the trial was had, about the 1st of December, 1886, and just before he left, he entered judgment on the verdict, but the plaintiff was not advised of that fact, although effort was made in his behalf to ascertain what the justice had done. A transcript of the judgment so entered was filed in the office of the clerk of the district court of Jones County on the seventh day of April, 1888, the amount of the judgment for damages and costs then being more than one hundred dollars. The plaintiff claims that he first learned of the judgment about the time this action was commenced in August, 1888; that the verdict was unjust; that he owed defendant nothing, and had the justice

entered a judgment as required by law, he should have appealed therefrom, and had another trial; and that he was prevented from taking an appeal by reason of the failure of the justice to perform his duty. He asks that the judgment be set aside and canceled, and that he have general equitable relief.

Section 3552 of the code, in regard to proceedings in justices' courts, is as follows: "In cases of dismissal, confession, or on the verdict of a jury, the judgment shall be rendered and entered upon the docket forthwith. In all other cases, the same shall be done within three days after the cause is submitted to the justice for final action." In this case, more than ninety days elapsed after the return of the verdict be fore judgment was entered. In Burchett v. Casady, 18 Iowa, 344, it was said that the "forthwith" of the statutes means “in a reasonable time," and an entry of judgment on Monday on a confession of judgment filed with the justice late in the evening of the preceding Saturday was sustained. So in Davis v. Simma, 14 Iowa, 156, 81 Am. Dec. 462, it was held that a judgment rendered at elever 'clock, A. M., of one day, on a verdict which was returned to the justice at half-past ten o'clock of the preceding evening, was in time. But in that case it was said that the legislature has directed that the justice shall, without delay, enter the judgment in such cases, because there is no occasion for deliberation on his part, but that the justice is not required to work at unreasonable hours, and that he is not allowed three days in which to enter the judg ment. In Harper v. Albee, 10 Iowa, 390, it was held, that the justice having failed to enter a judgment on a verdict for nearly sixty days after the verdict was returned, his right to do so was gone, and a judgment entered by him after that time was void: Guthrie v. Humphrey, 7 Iowa, 25. We are of the opinion that the delay in entering judgment in this case was so great that the judgment entered was without jurisdiction, and is void. Had the plaintiff discovered the action of the justice in rendering judgment in time, he might have had that action reviewed by certiorari, but it appears that he did not learn of it until more than a year had elapsed after it was done, and until a transcript of the judgment had been filed in the district court. It was then too late to resort to that remedy. We are of the opinion that plaintiff has shown himself entitled to the relief asked: Dady v. Brown, 76 Iowa, 528. Reversed.