The Tipton advertiser. [volume] (Tipton, Cedar Co., Iowa) 1856-1962, 1859-07-16

points out particularly and minutcly the
manner Of enforcing the payment Of
judgments recovered in ordinary civil
actions, to wit: by execution. If the
Code contained no other provisions upon
the subject Of sales under execution or
under process to enforce the payment Of
money, then it might be concluded that
chapter ITO would relate to sales under
proceedings TO forclose mortgages, as
well as general judgments and execu.
tons. But as there are other provisions
we repeat the remark that this chapter
relates in its essential features aud pro-
visions to executions in ordinary civil
actions, and the redemption therein pro-
vided for is redemption from such sales.
Ii this is not 80, then why make any pro-
vision for executions and sales ia the
special cases Of mortgsg Is as is done in
chapter 1lS, or why was it not left to
the general provisions foand 10 the chap
ter providing for executions aud sales in
ordinary civil actions2 The answer is
that Chapter 10 gives the general rule,
whereas liz gives the rule in the special
proceeding.
But in the next place, the provisions
of chapter lis are Inconsistent with the
assumptions that a redemptions was in
tended. Some Of them may be en-
| toned.
In the FIRST place, when sheriff sells
under an ordinary execution, he gives to
the purchaser certificate of sale, which,
among other things, recites thus: the
holder will be entitled to deed, uni
redemption is made within one year
thereafter, according to law. When the
sheriff sells under mortgage, however,
he is TO execute to the purchaser a dsed
! Of the real estate. (which shall be effect
ual to carry the whole title and interest
purchased In view Of these provis
ions, several considerations may be pre-.
scented.
First Why make a deed in one case
and a certificate in the other, if redeup.
tion could be made in both
Second In case of an ordinary re
drmption, the clerk to whom the money i,
paid gives to the redcmptioner IA reeeip,
| showing that fact or, it creditor re
deems, lie is entitled to m assignment oi
the certificate issued by the sheriff TO the
original purchaser. aud thi is all the CIV
iience prov ded for showing that the in
choate title, SO to speak Of the purchaser
has been Invested or changed hand, --
Aud how could this be done after the
purchaser took the d~rd 10 which he i:
entitled when he purchasesat nor,gsg,
sale. II is utterly inconsistent with anc
contrary TO the well known and estab
Ii>hed rules respecting the conveyance o
real property TO thus summar 5 aud in
formally divest title which has bepi
once vested by deed duly ackuo wIedy
ed and recorded.
Thi1. HAPPIER 10 gives TO the c.'e,l
itor Of the defendant whose elaims be
Gene liens prior to time fixed, the righ
10 redeem after the sale. Section 2USs
Of chapter llS, gives to any person hav
ing previous lien the right 1,rior II
the sale. to an assignment, If nil the in
tercst OF the holder Of the mortgage, be
fore paying the amount secured viii
interest and costs, together with any 9th
er paramount liens of the same holder
Now, il is either reasonable or consisteu
to suppose that party having a prlo
lien OIL the property should be required II
redeem tejore the sale. and that only b.
paying the whole amount secured, anC
the other paramount liens of the holder
and that the creditors whole lien at,achel
either prior or subsequent has the priv
ilege for months after the sale, by payin;
the amount of the bid with interest.
Fourth. The chapter On the subjec
of foreclosure Of mortgages evideu,l,
contemplates the taking Of On accoun
and the ascertainlnent of the anlounts aut
dates If the several liens upon the prop
eriy sold. Hence it is provided that i
there are no other liens upon the prop
erty, the overp!-s of the amount bid re
manning after satisfying the mortgage
md Gusts, is to be paid to the mottea- or
If there are other leins, however, or 9th
er payments secured by the same mort
gage, they are to be paid off 10 their or
der, md if the money secured by an,
such lien is not due at the time, IA sura
bic rebate Of interest must be made b.
the holder thereof or his lien will b
postponed to that Of \ junior date-
Lss 2oss 0 90. Nowit would seeIu ell
fnrely unnecessary to provide for ell thes
things If there Was redemption, for ,hi
accounting and these payments are to b
made from "r At the time of the sale, Nh,
not subsequently. And it is ascer,aine,
hot whether the defendant has any in
teiest remaining in the property. blu
whether he is entitled to any of the pro
ceeds If the sale.
Fifth. The proceeding is for III
foreclosure ola mortgage" NV villa
docs this language mean? To forecIos
Is TO shut up. preclude, stop. prevent
cut Oft. Foreclosure, according TO Black
stone, z Com. $50, is the act of fore
closing or depriyins mort eager of III
right OF redee.nlng mortgaged estate
, Again j, is defined to be the process b
which Mortga.ee acquires an absolut
, tile to the property Of which he has pre-
: siously been only the additional owner
/ or upon which he has previously had
, mere lien or incumbrancc g iIiItiar,
on Mortg ID Thislast definition apple
more particularly to what i. termed
, strict foreclosure, and under the metho
provided 10y the Code would have to b
: modified SD as to mean the process b
8 which the morigagee or other purchase
{ obtains an absolute title to property upo
+. which there was only previous lien Q
: Remembrance, When it il claimed thu
D the right Of the mortgsgor to redeem
I extinguishcd by topse u time. and POI
+ session ip the mortgagce's applications 0
Q the part Of the mortxagor TO redeem. III