
    Lay v. Gibbons et al.
    
    1. Sale kt parcels. A sale of several distinct parcels of land described in one mortgage in the foreclosure thereof, constitutes sufficient ground for setting the sale aside, and ordering a resale. (Boyd v. Ellis, 11 Iowa, 91, and the eases therein cited; Grapengether v. Fejervcvry, 9 Id., 163; Sitir gleton v. Scott, Id., 589; Bradford v. IAmpus, 13 Id., 424.)
    2. Sale op homestead m foreclosure. Where a mortgage embraces several distinct tracts of land, one of which is the homestead of the mortgagor, the homestead should be sold in foreclosure,' only to supply the deficiency remaining after exhausting the other property mortgaged.
    
      Appeal from Dubuque District Court.
    
    Wednesday, December 24.
    Gibbons and wife, on the 16th of July, 1857, made their mortgage with power of sale to complainant to secure near $800. This mortgage was upon three distinct tracts of land, including the homestead of the mortgagors. Subsequently Gibbons made two mortgages to his correspondents, Hammond and O’Neil & McNulty. In these the wife did not join. After this, complainant filed his bill in equity to foreclose his mortgage, making Gibbons and wife parties respondents. The wife was not served, however. A decree was entered, by consent, against Gibbons, for the amount found due and for a foreclosure of the mortgage. A special execution issued, under which the lands were sold “in a lump” to complainant, for a little more than one-third of their admitted value. Complainant now files this bill against the mortgagor-and wife and the subsequent mortgagees to quiet his title. The cause was heard on bill, answers, cross-bills and answers thereto, as also certain admitted facts; and a decree entered ordering a re-sale of the premises paying from the proceeds, first, the amount of complainant’s demand, and then to the other mortgagors, according to the priority of their liens. The decree also directed the sale of the homestead only after the other mortgaged property was exhausted. Complainant appeals.
    
      Griffith & Knight for the appellant.
    
      Wiltse & Blatchhy and O'Neil & McNulty for the appellees.
   "Wright, J.

Whether the subsequent mortgagors were necessary parties to the bill of complainant to foreclose; whether such foreclosure and sale barred them of all right to redeem; whether the execution of the mortgage by the wife cut off all claim on her part of dower or other interest in the land; whether she not being a party to the original action, could to this plead usury, the homestead exemption, or other like defenses; we say whatever answer might be given to these and other important questions raised by counsel, we should still feel constrained to affirm this t decree.

It will be observed that the Court set aside the sale under the special execution and ordered the premises to be re-exposed, and from the proceeds complainant is to be first paid his entire demand (as also the costs of foreclosure), the surplus, if any, going to the junior mortgagees. And the complainant having asked the Court to quiet his title, and respondents by their cross-bills having prayed affirmative relief, it was entirely competent for the Court to order such re-sale, for two reasons. First. The property was sold “ in a lump ” and not in parcels, Boyd v. Ellis, 11 Iowa, 97, and the cases there cited; Singleton v. Scott, Id., 589; Grapengether v. Fejervary, 9 Id., 163; Bradford v. Limpus, 13 Id., 424. Second. A portion, of the property sold was the 'homestead of the mortgagors, and as such it should not, in the language of the law, have been sold, “ except to supply the deficiency remaining after exhausting the other property of the debtor, which is (was) liable to execution,” Revision of 1860, § 2281. Whether complainant’s title would have been vitiated for this reason, in an action of right, or any collateral proceeding, we need not, of course, determine. As the record stands (under the cross-bill), this is a direct proceeding to set aside the sale. And that the Court did not err in ordering a resale, under the circumstances, is to our minds quite clear.

Affirmed.  