Moomey v. Maas

Dillon, J.

1. Mortgage: effect of foreclosure and sale: dower. =1. The plaintiff,.Maria, the widow of the mortgagor,' did-not join in the execution of the mortgage, hence she has a right of dower in the-land in question unless this right is barred -or extingU;s]ie(j ]jj. the foreclosure suit to which she was made a party defendant, and the.sheriff’s sale thereunder. Defendants claim that the foreclosure decree and- sale had. the effect- to cut off or bar her right -of dower. This is-denied-by the plaintiffs.

In this respect, the District .Court-decided correctly. We have examined the foreclosure petition, and find that it contains no allegations with respect to. the dower right of: the. widow, and that it does not in -any way seek to bar or foreclose it. It simply -prays- “ that an account be taken of the amount.dne on the mortgage ; .thata-decree be rendered therefor against the- administrator; that the equity of -redemption of said heirs at law of said decedent in and to the said mortgaged premises be foreclosed; that the same be sold, and -for general-relief.” Her dower had not-been assigned to her. . Under these circumstances, it is .-plain- that she was .not bound to appear and set-.up her do,wer right, in-order to’.protect it — to prevent it from being cut off by the foreclosure decree. The decree made *384 no reference to lier dower right, and did not undertake to bar it.

Before the foreclosure proceeding was commenced, her dower right had become consummated by the death of her husband. Her right to dower was paramount to the right of the mortgagee ; and the facts showing it appeared on the face of the petition.

Her right was not alleged to be inferior or subordinate to that of the plaintiff. She was not bound to redeem from the mortgage to protect her right. If she had joined in the mortgage, or if it had been given for the purchase-money, and she had been made, with proper averments, a party defendant, she would doubtless be barred of her dower by a decree and valid sale thereunder. The decree was rendered by default, and the case falls exactly within that of Standish v. Dow (21 Iowa), a case to which we gave very, thoughtful consideration.

The decree did, at most, only undertake to cut off her right to redeem, and to this extent only, can it affect her right. She does not have to redeem in order to save her dower, and hence her right to dower remains unaffected by the decree, giving to it its most extended effect.

To prevent a misapprehension of the point hero ruled, we may add, that if the wife had joined in the mortgage, or her right to dower had been put in issue, or questioned by allegations in the petition, it would doubtless have been incumbent upon ■ her to have appeared and defended, or else be bound by the decree and sale.

3. Jurisdiction: defective return. II. The District Court held the foreclosure decree void, on the assumed ground that owing to the defective service or return of service on the minors, the court , , . . ,. , , had no jurisdiction, and hence its decree was a nullity. The District Court relied, to sustain this view, upon the case of Allen v. Saylor ( 14 Iowa, 436 ), which held, that, unless there was complete, service upon the *385 minors, the court had no jurisdiction to appoint a guardian ad litem, or to make any order prejudicial to their rights.

But that was a question arising on appeal. In the present case the question arises not upon appeal, but in another cause.

As the minors and their mother were personally served, although the return would have been pronounced defective on appeal, yet the decree was not void; and hence, the heirs at law are not entitled to redeem upon this ground alone.

Upon looking into the evidence, we see no supporting equities which give them the right to be allowed to set aside the foreclosure decree and to redeem the property from the mortgage, provided the sheriff’s sale was valid. It will be observed that the objection to the return of service is purely technical. The minor children had no guardian except the mother, who- was their natural guardian ; they lived with her, and she had the care and control of them. Both she and they were personally-served, and, in fact, all was done which the statute tiren in force required. Code, 1851, § T721, and ch. 133. But the return omits to say that Maria, who was served as well as the children, was the mother; and this omission is the only defect claimed to exist.

The evidence, aliunde, shows that the administrator knew of the suit; counseled with an attorney and made no defense in court, probably for the reason that no defense existed. In the present proceeding, the validity of the mortgage debt is admitted. So that in point of law, we hold that the foreclosure decree was not void, but simply voidable on appeal. Austin v. Charlestown Female Seminary, 8 Metc. (Mass.), 196. And in point of equity, the present bill to redeem, based upon the alleged defective service, is without support in the facts of the transaction.

*386

4. Judicial sale: after death of execution. III. The execution was in due form, and was duly levied. The sale, upon a second advertisement, was made after the return day of the writ. It is tine that the first sale was postponed, and that the sheriff returns that it was indefinitely postponed by the agreement of “ the plaintiff’s attorneys and the defendant.” The evidence, aliunde, shows that the postponement was made at the request of Hunter and of the widow, and for their benefit; that in point of fact there was a definite time understood in which the balance was to be paid, and that the plaintiff in the execution did not order the sheriff to proceed until this time had considerably overran.

It is not claimed that the sale was made clandestinely or fraudulently. The return shows that the sheriff duly advertised a second time. Although the fact of the sale was known, no attempt was made to question its regularity or validity until the present suit was brought, nearly five years after, and not until the purchaser at the sheriff’s sale had sold the land for value to another. So that there was no equitable reason for setting aside the sale, and it must stand, unless it is void, because made after the adjournment, and after the writ had expired.

The principle decisive óf this question has been several times determined by this court. It is, that, where there has been, under a valid execution, a levy in its life-time, the officer has the power to sell after the return day. The authorities to this effect are too well settled to be disturbed by a denial of the soundness of the foundation upon which they rest. Many of the cases support sales where the lapse of time was much greater than in the present instance. On this subject see Stein v. Chambless, 18 Iowa, 474 ; Childs v. McChesney, 20 Id., 431; Butterfield v. Walsh, 21 Id.; Phillips v. Dana, 3 Scam. (Ill.), 551; Wheaton v. Sexton, 4 Wheat, 503; La Farge v. *387 Van Wagener, 14 How. Pr., 54 ; Bicknell v. Byrnes, 23 Id., 486; Wood v. Colvin, 5 Hill, 228 . In this last case the sale by the sheriff was made on a writ over two years old, and was sustained. Bronson, J., remarles: “ The objection that a new execution should have issued is not well founded. When the execution of a writ of fl. fa. has been commenced before the return day has' passed, it may be completed by a sale of the property afterward; and the second sale was well made without issuing a new writ.” * * “ The original levy remained' xinaffected.” 5 Hill, 228 -231.

The decree of the District Court is reversed, and the bill dismissed, the decree dismissing it, to state that it is found and determined herein that the foreclosure decree, and sale thereunder, do not bar the right of the said Maria to dower.

Reversed.