
    Smith et al v. Shay et al.
    1. Redemption: eight of as between junior and senior mortgagees. Where B. mortgaged land to defendant, and afterward mortgaged the same land to paintiffs, and defendant, under a foreclosure of his mortgage, to which plaintiffs were not made parties, procured a deed to the land, and afterwards plaintiffs, under a foreclosure of their mortgage, to which defendant was not made a party, also obtained a deed to the land, held that, while plaintiffs’ right, as junior mortgagees, to redeem from the senior mortgage, was not cut off by the foreclosure of the senior mortgage, yet that right was not absolute, hut that defendants could prevent the exercise of that right by themselves redeeming from the junior mortgage, by paying, not merely the amount for which the land sold on the foreclosure of the junior mortgage, but the amount of plaintiffs’ judgment against B. upon the junior mortgage debt.
    
      
      Appeal from Shelby District Court.
    
    Tuesday, December 4.
    This is an action in equity for tbe redemption of lands sold under tbe foreclosure of a mortgage. Tbe facts are as follows: On tbe lltli day of September, 1874, Daniel Burns executed to tbe defendant, Walter Shay, a mortgage on tbe lands in controversy. In J une, 1878, said Burns executed to plaintiffs a mortgage on tbe same lands. Tbe- defendant, Sbay, foreclosed bis mortgage by an action in tbe United States circuit court, and on tbe lltli day of February, 1880, obtained a master’s deed to said lands, in pursuance of sucli foreclosure. Plaintiffs were not made parties to sucli foreclosure suit. Tbe plaintiffs foreclosed their mortgage by an action in tbe district court of Shelby county, Iowa, to which action Sbay was not made a party. On tbe 12th day of February, 1880, one day after tbe date of tbe master’s deed to Walter Sbay, the sheriff of Shelby county executed to plaintr iffs a sheriff’s deed to said lands. March 1, 1880, defendant, Sbay, made a contract with tbe defendants, Frank & Elmen-dorf, giving them tbe right to lease or sell said.lands, by which they were to have an interest in tbe proceeds thereof if they effected a sale. March 25, 1881, Frank & Elmendorf sold said lands to Thomas Jones, who now claims to be the owner thereof.
    On tbe 26th day of April, 1881, Smith & Crittenden deposited with tbe clerk of tbe circuit court of tbe United States tbe sum of $1,380.15, for tbe purpose of redeeming said land from tbe sale under tbe Sbay foreclosure, but withdrew said deposit on tbe 22d day of July, 1881. On tbe 16th day of July, 1881, and before tbe plaintiffs bad taken up tbe money so deposited with said clerk, they commenced this suit to redeem said land.
    Tbe defendants, Jones and Frank & Elmendorf, filed an answer, in which they ask that they may be allowed to redeem from tbe plaintiffs’ mortgage. The court decreed that the defendants, Thomas Jones and Frank & Elmendorf, be allowed to redeem said premises by paying into the hands of the clerk, on or before October 1, 1882, the sum of $1,131.10, with interest from the date of the decree at the rate of ten per cent, and that, if the defendants fail to make such redemption within the time named, the plaintiffs may redeem, by paying to the clerk for the use of defendants, on or before November 1, 1882, the sum of $1,125, with interest from August 22d, 1882, the date of the decree, at ten per cent. Both parties appeal.
    
      Hart <& Brewer, for plaintiffs.
    
      Stuart Bros, and D. 0. Stuart, for defendants.
   Day, Ch. J.

I. The plaintiffs hold and claim under the junior mortgage. They were not made parties to the foreclosure suit of the Shay or senior mortgage. It is conceded by the defendants that their right of redemption was not barred by the decree and sale under the senior-mortgage. It is claimed, however, that their right to redeem is not an absolute one, and that defendants can prevent the exercise of that right by themselves redeeming from plaintiffs. This view was adopted by the court below, and it is, we think, correct. In 2d Jones on Mortgages, 2d Ed., section 1075, it is Sftid: “A junior incumbrancer, who, not having been made a party to a foreclosure of a prior mortgage, afterwards redeems, redeems not the-premises, strictly speaking, but the prior in-cumbrance, and he is entitled, not to a conveyance of the premises, but to an assignment of the security. Therefore, if the' prior mortgagee in such case has become the purchaser at the foreclosure sale, and has thus acquired the equity of redemption of the mortgaged premises, the junior mortgagee upon redeeming is not entitled to a conveyance of the estate, but to an assignment of the prior mortgage; whereupon the prior mortgagee, as owner of the equity of redemption, may, if he cboose, pay tbe amount due upon tbe junior mortgage, redeeming that.” See also Pardee v. Van Anken, 3 Barb., 534; Renard v. Brown, 7 Neb., 449. In our opinion tbe court did not err in giving tbe defendants tbe paramount right of redemption.

II. Tbe court fixed tbe amount wbicb tbe plaintiffs should pay to redeem at $1,125. Of this both parties complain. The plaintiffs insist that tbe amount is too large, and tbe defendants that it is too small. From a careful review of tbe whole case, we find that tbe amount wbicb plaintiffs should pay is $1,350.97, with interest from August 22, 1882, on all of this sum, except $334.39, at ten per cent, apd upon $334.39 at tbe rate of six per cent. Tbe defendants complain of tbe amount wbicb tbe court required them to pay in order to effect redemption. They insist that they should pay only tbe amount for wbicb tbe land sold. We think that the court correctly required them to pay tbe amount of tbe judgment against Burns. Tbe defendants will be allowed to redeem by paying into tbe bands of tbe clerk of this court, for tbe use of plaintiffs, tbe sum $1,131.10, with interest from August 22, 1882, at ten per cent, within sixty days from tbe entering of decree in this court. If tbe defendants fail to make such redemption, tbe plaintiffs may redeem by paying to tbe clerk for tbe use^of defendants the sum of $1,350.97, with interest as above indicated, within ninety days from tbe rendition of decree. *

Tbe plaintiffs will pay tbe costs of appeal. With tbe modification above indicated, tbe judgment is

Affirmed.  