The Buchanan County guardian. (Independence, Buchanan County, Iowa) 1858-1864, 1859-07-14

Inc speciai cases OF mortgages as Is done
in chapter lis, or why was it not left to
the general provisions found in the chap
ter providing for executions and sales in
ordinary civil actions? The answer is
that Chapter 10 gives the general rule,
whereas ll8 gives the rule in the special
proceeding
But in the next place, the provisions
of chapter / Is are inconsistent with the
assumption that a redemption was in
tended. Some of them may be men
toned:
In the first place, when Sheriff sells
under an ordinary execution, he gives to
the purchaser a certificate of sale, which.
among other things, rectes thus the
holder will be entitled to a deed, unless
redemption is made within one year there
after, according to law. When the Sher-
if sells under mortgage, however, he
is to execute to the purchaser deed of
the real estate. (Which shall be effectual
to carry the whole title and interest pur-
chased" In view of these provisions,
there may be several considerations pre-
sented:
First Why make deed in one case
and certificate in the other, if redemp-
ton could be made in both ?
Second In case of an ordinary re-
demption, the clerk to whom the money
is paid gives to the redemptioner re-
ceipt showing that fact or, if credi-
tor redeems, he is entitled to an assign
ment of the certificate issued by the
sheriff to the original purchaser, and
this is all the evidence provided for show
ing that the inchoate title, so to speak, of
the purchaser, has been Invested or
changed hands. And how could this be
done after the purchaser took the deed
TO which he is entitled when he purchas
es at mortgage sale. 1t is utterly in
consistent with and contrary to the we'll
known and established rules respecting
the conveyance of real property, to thus
summary and informally divest title
which had been once vested by deed
fully acknowledged and recorded.
Third. Chapter 10 gives to the cred
itor of the defendant whose claims be.
come liens prior to time fixed, the right
to redeem after the SALE Sec. 9O88 of
chapter J. Is, gives to any person having
aprevious lien the right prior to the sale,
TO an assignment of all the interest of
the holder of the mortgage, before pay
ing the amount secured with interest and
costs, together with any other paramount
liens of the same holder. Now, is it eth
er reasonable or consistent to suppose
that party having a prior ler on the
property should be required to redeem
before the sale, and that only by paying
the whole amount secured, and the other
paramount liens of the holder, and that
the creditors whole lien attaches either
prior or subsequent, has the privilege for
months after the sale, by paving the
amount of the bid with interest?
Fourth The chapter on tn subject of
foreclosure of mortgages evidently con-
templates the taking Of an account and
the ascertainment of the amounts and
dates of the several liens upon the prop
erty sold. Hence it is provided that if
there are no other liens upon the proper
ty. the overplus of the amount bid re-
naming after satisfying the mortgage and
costs, is to be paid to the mortgagor. If
there are other liens, however, or other
payments secured by the same mortgage
they are to be paid off in their order, and
II the money secured by any such lien is
not due at the time, suitable rebate OF
interest must be made by the holder
thereof or his lien will be postponed to
that of junior date. [sS 2os8-9 80. I
Now il would seem entirely unnecessary
to provide for all these things if there
was redemption for this accounting and
these payments are to be made from or
at the lime of the sale, and not subse-
quenly. And it is then that it is ascer-
tanned not whether the defendant has any
interest remaining in the property, but
whether he is entitled to any Of the pro-
ceeds of the sale.
FyM. The proceeding is for the :" fore
closure of a mortgage" Now what does
this language mean To foreclose is to
shut up, preclude, stop, prevent, cut off.
Foreclosure, according to Blackstone,
Il Com. 1853. is the act of foreclosing
or deprlving Mortgagor of the right OF
redeemlng mortgaged estate. Again
1t Is defined to be the process by which
Mortgagee acquires an absolute title to
the property of which he has previously
been only the conditional owner, or upon
which he has previously had a mere lien
or incumbrance, e billiard on Mortg.
- This last definition applies more
particularly to what is termed strict
foreclosure, and under the method pro-
yided by the Code would have to be
modified SO as to mean the process by
which the Mortgage or other purchaser /,
obtains an absolute title to property upon
which there was only previous lien Or
lncumbrance. When it is claimed that
the right Of the Mortgagor to redeem is
extinguished by lapse of time, and pos
session in the Mortgage application on
the part Of the Morgagor to redeem, are
Of frequent occurrence in the books, and
Courts have been liberal in the recogni-
ton Of the right When, however, the
Mortgage comes into Court in the first
instance, either for the purpose Of OBJ
timing strict foreclosure or one by
Gale no Mo pr hoco