Reports of Cases at Law and in Equity Determined by the Supreme Court of the State of Iowa Volume 56
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1882 edition. Excerpt: ... of the mortgagor and the insufliciency of the mortgaged premises to satisfy the mortgage, adopt the finding of the sherifi"s jury as to the damage to the lands, and waiving his right to have been made a party to the condemnation proceedings, subject the money in the sherifl's hands to the payment of the mortgage? If he may, his lien, although it may not be strictly accurate to designate it as a "specific lien," is paramount to the rights of an attaching creditor of the mortgagor. As we understand the petition the 'railroad company has paid in full for the right of way. Indeed, we can hardly suppose a case where a sheriff 's jury could apportion the damages between the owner and a person holding a mortgage upon the land. Such an adjustment of the rights of owners and other parties in interest is not within the province of such a tribunal. They estimate the value of the right of way only. Now, it would be grossly inequitable to compel the railroad company to pay twice for the same right; by al lowing the owner, or what is the same thing, his creditors, to sieze the money in the hands of the sheriff, and then subject the right of way to the payment of the mortgage. We are clearly of the opinion that in such case the mortgagee "may waive the omission to make him a defendant and volun tnrily assert his right to the money in the hands of the sheriff. The views here expressed are supported by the case of Plait 'v. Bright, New Jersey Court of Chancery; The Reporter, Vol. 9, 148; and see same case as aflirmed by the Court of Errors and Appeals; The Reporter, Vol. 10, p. 17 7. III. The next question certified is as follows: " Under the facts stated in the petition, has the plaintiff an adequate remedy...
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