Opinion
No. 43490.
June 19, 1936.
MORTGAGES: Redemption — extension under moratorium — rentals — 1 discretion of court. The court in fixing the monthly rental of residence property for the period covered by an extension of time in which to redeem from foreclosure sale, may be amply justified in rejecting a conditional offer of rent, and in accepting, instead, a materially less but unconditional offer.
MORTGAGES: Redemption — moratorium extension — rentals —
unallowable condition. need not pay any rental.
Appeal from Polk District Court. — F.S. SHANKLAND, Judge.
An application for an extension of time under the moratorium statute, which was granted by the district court. Plaintiff appeals. — Modified and affirmed.
C.H. Burghardt, for appellant.
William W. Schweiker, for appellees.
Plaintiff foreclosed a mortgage against the defendants and their city property. Sale was had and subsequently an application was made for an extension of time of redemption under the statute, which was granted, and the rental of the property fixed at $35 per month. In February 1935, a second application was made for extension of time of redemption under the second moratorium statute, and the matter came on for hearing.
Plaintiff introduced no evidence as to why the second moratorium should not be granted extending the time of redemption until March 1, 1937, but did introduce evidence as to the rental value of the property, it being the residence of the defendants and occupied by them. On hearing, plaintiff, the owner of the sheriff's certificate, made a conditional offer of $55 per month as rental of the property; and introduced evidence which we have carefully reviewed, and at the close of the testimony the court granted the extension of time and fixed the rental value of the property at $35 per month.
[1] Plaintiff now insists that because it offered $55 per month rental the court erred. With this we do not agree. The offer made by the plaintiff as to the rental was a conditional offer, describing numerous conditions and provisos in connection with the offer. We are contented with the order of the court fixing the rental at $35 per month for the balance of the term.
[2] The court, however, in its order, provided that: "If the plaintiff appeals to the supreme court of Iowa, the defendants need not pay the monthly rental of $35." There is no authority whatever for this part of the order, and the same is hereby cancelled. There is no authority in the statute for penalizing a party for appealing. The granting of the extension of time and the fixing of the monthly rental at $35 has our approval. The original order made herein is modified accordingly. — Modified and affirmed.
DONEGAN, C.J., and PARSONS, STIGER, RICHARDS, ANDERSON, and MITCHELL, JJ., concur.