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

points out particularly and minutely 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 uhder execution or
under process to enforce the payment of
money, then It might be concluded that
chapter 110 would relate to sales under
proceedings to forclose mortgages, as
well as general judgments and execu.
.ions. 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.
If this is not so, then why make any pro.
vision for executions and sales in the
special Cases Of mortgages rs is done in
chapter 1l8, or why was it not left to
the general provisions foand in the chap
ter providing for executions aud sales in
ordinary civil actions7 The answer is.
that Chapter 10 gives the general rule,
whereas lle gives the rule in the special
proceeding.
Blu, in the next place, the provisions
Of chapter lis arcoinconsistent. with the
assumptions that redenlptions 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 t. 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 d'ed
of the real estate, (which shall be effect
ual to carry the whole title and interest
purchased.' In view of these provis-
ions, seve.al considerations may be pre-.
srniei
First Why make deed in one case
and Il certificate in the other, if redemp.
tion could be made in both J.?
Second. In case of an ordinary re-
dcmption, the clerk to whom the money is
paid gives to the redcmpt,oner receip,
showing that fact; or, if u creditor re
deems, he is entitled to IN assignment vi
the certificate issued by the sheriff to The
original purchaser. aud thi. is all the ev-
idencc prov ided for showing that the in.
choate title, 50 to speak Of the purchaser,
has been divestrd or changed hands $1,000
Aud how could this be done after the
~ 4 y L.,
entitled when he purchases at "A mor,g gage
sale. 1t is utterly inconsistent with and
contrary to the well known and estab-
'i>hed rules respecting the conveyance o.
real property to thus summartly aud in
formally dlre>t title which has been
once vested BY deed duly aekuo wIedy.
ed and recorded
Wa"d. HAPPIER ITO gives TO the c.'el
itor Of the defendant whose claims be-
come liens prior to time fixed, the right
to redeem after the sale. Section 2uss
Of chapter lls, gives to any person hay,
ing "A previous lien the right 1,rior to
the sale, to an assignmeu, of all the in-
tercst OF the holder Of the mortgage, be
fore paying the amount secured with
interest and Gusts, together with any 9th
er paramount liens of the same holder
Now. It is either reasonable or consistent
to suppose that a party having n prior
lien Oh the property should be required to
redeem Lejore the sale. aud that only by
paying the whole amount secured. and
the other paramount liens of the holder,
aud that the creditor whole lien attaehes
either prior or subsequent has the priv.
ileee for months after the sale, by paying
the amount of the bid with interest.
Fourth. The chapter on the subject
Of foreclosure Of mortgages evidently
contemplates the taking of IN accoun,
and the ascertalnnent of the amounts aud
dates Of tue several liens upon the prop
erty sold. Hence it is provided that if
there src no other liens upon the prop.
erty. the overP.-s Of the amount bid re-
nainins after satisfying the mortgage
md costs, is to be paid to the mortgage or
If there are other LENS, however, or 9th
er payments secured by the same mort
gage, the, are to be paid off in their or
der, md if the money secured by anv
such lien IS not due ut the time, "a sulta.
bic rebate Of interest must be made by
the holder thereof or his lien will be
postponed to that Of a junior date-
lsS 2oss 8 90. Now i, would seem en-
stifely unnecessary to provide for all these
things if there was redemption, for thi.
accounting and these payments are to b.
made from ar At the time Of the sale, and
not subsequently. And it is ascertained
not whether the defendant has any in
te1est remaining in the property, but
whether he is entitled to any ot the pro-
ceeds If the sale
Fifth. The proceeding is for the
foreclosure of mortgage. NV what
does this languag" mean? To foreclose
is 10 shut up. preclude, stop, prevent,
cutoff. Foreclosure, according to Black
stone, z Com. l59, i. the nc, OF fore
elosing.o or deprivins mortgaecr Of the
right OF redeeming u mortgaeed estate
Again it is defined to be the process by
which Mortgagee acquires an absolute
tile to the property Of which he has pre-
'ioue'y os.n ob'y .fs T. hh'tihtiai owner.
or upon which he has previously had a
mere lien or incunbrance, e !IIliiara
on Mort= u Thislast definition applies
more particularly to what i. termed n
strict foreclosure, and under tile method
provided by the Code would have to be-
modified SD as to mean the process by
which the mort.agee or other purchaser
obtains an absolute title to property upon
which there was only \ previous lien or
ircunbrance. When it is claimed that
the right Of the mortrsgor to redeem u
extinaushed by lapse n time. and pos.
session in the mor,gagce's applications on
tho part nf tha n,nr,,,..,r !. ralo,,a -.