+

he held under the first lien, the plaintiff would take nothing
by his purchase but the right to redeem and the immediate
possession. The right of redemption probably existed with-
out the formality of a sale; but it only existed during the
period of nine months from the sale, while Tyler's right
existed for the period of 12 months, and this the plaintiff
would have obtained had the sale taken place and he had
become the purchaser thereat. Before the plaintiff could
have redeemed independently of the sale he probably would
have been compelled to pay the judgment on which he was
surety. The plaintiff, by a purchase of Tyler's interest,
would, we think, have obtained valuable rights.
Reversed.

Appellees.

Filed December 16, 1879.

The right of lien-holders to redeem lands sold on execution is not restricted in any way by the fact that the defendant has appealed or procured a stay of execution. The restriction imposed by section 3102, Code, does not extend to any one except the execution debtor.-[ED.

Appeal from Jones district court.

Action in chancery. There was a decree dismissing the petition upon a judgment which sustained a demurrer thereto. Plaintiff appeals. The facts of the case appear in the opin

ion.

Merrill & Howat and A. R Cotton, for appellant.

Charles M. Dunbar, for appellees.

BECK, C. J. 1 The petition alleges that plaintiff is the assignee of a judgment rendered May 21, 1878, against S, G. Franks, J. W. Franks and another; that on the twentieth of September, 1877, a judgment was rendered in favor of Phelps, Dodge & Palmer against E. M. Franks & Son, execution thereon being stayed by S. G. Franks becoming surety as provided by law; that each of these judgments became a lien upon certain lands owned by S. G. Franks, and execution was issued upon the last named-the senior judgment--and these lands were sold thereon to defendant Becker; that on the day of the sale plaintiff paid to the clerk of the proper eourt a sum of money sufficient to redeem the lands, and otherwise complied with the provisions of the statute providing for redemption from sheriff's sales by judgment creditors; that Becker assigned his certificate of purchase to the Ger

man Bank, a defendant in this action, and each of these parties refuse to accept the money paid by plaintiff for the redemption of the lands, and claim that they cannot be redeemed, and that the sale thereof was absolute, and the bank is entitled to a sheriff's deed. A demurrer to the petition was sustained.

The decision of the court below is, we understand, based upon the fact that the defendant in the judgment whereon the land was sold had caused execution to be stayed by S. G. Franks becoming surety, the court holding that the stay deprived the creditors and the surety, as well as the defendant in execution, of the right of redemption. This decision presents the only question arising in the case which we are called upon to decide. We proceed to its consideration.

2. The sale of real estate upon execution, and all proceedings and rights arising thereon, are prescribed by statute. Such proceedings were unknown to the common law. The right of redemption after sales upon execution, either by defendants in execution or holders of liens upon the lands, would not exist unless provided for by statute. The legislature may prescribe what parties may redeem, and under what circumstances the right shall exist and may be exercised. It is entirely competent for the statute to deny the right under circumstances that may be prescribed in the exercise of legislative wisdom.

Code, § 3102, confers the right of redemption upon the execution defendant, to be exercised within one year from the day of sale. But it provides that in case he has taken an appeal in the action, or has caused the execution on the judgment to be stayed, such right cannot be exercised. Sections 3104, 3120 provide that creditors of the execution defendant, holding liens upon the land sold, may redeem and prescribe rules for the exercise of the rights conferred. But there are no restrictions upon the right, as in the case of the execution debtor, to the effect that it shall not be exercised in case an appeal has been prosecuted in the action, or the execution has been stayed.

We know of no principle which requires us to extend the restriction which, in its very terms, applies alone to judgment debtors, so as to affect the rights of creditors or others. The express language of the provision must prevail. No other conclusion can be reached than that, in case of an appeal or stay of execution, defendant alone is denied the right to redeem. The provision so interpreted is based upon reason.

If the defendant has delayed execution by an appeal or stay he should gain no more time by redemption. No such reason can be given for depriving the lien-holder of the right of redemption. The delay by a stay or an appeal was not caused by his act. His right should not, therefore, be cut off by it. The right is secured to him in order that he may subject the land to his lien after discharging, by redemption, prior liens. To deprive him of this right, because of an act of his debtor which he could not have controlled, and from which he received no advantage, would be neither wise nor just. We are very well satisfied that the legislature, in the use of the plain language of sections 3102 and 3104, intended nothing of the kind.

We reach the conclusion that the lien-holders entitled to redeem are not defeated of the right by an appeal or stay of execution taken by the execution defendant. The plaintiff had the right to redeem as the execution creditor of S. G. Franks, whose land was sold on execution. Whether the surety in the stay of execution is deprived of the right of redemption we need not inquire. He is not seeking to redeem, and plaintiff does not claim the right under him; it is secured to her as a lien-holder and without regard to the rights of others.

In our judgment the district court erred in sustaining the demurrer. Its judgment is therefore reversed, and the cause is remanded for proceedings in harmony with this opinion. Reversed.

ADAMS, J. I am not prepared to express an opinion upon the question as to whether a creditor can redeem in a case where the debtor cannot. I concur in the result reached in this case, but I do so upon the ground that I think that S. G. Franks could re leem, and that it would follow, of course, that his creditor could. The restriction upon redemption imposed by section 3102 of the Code applies, in my judgment, only to the defendant in the action, and possibly to his creditors. S. G. Franks was merely surety upon the defendant's stay bond.

Mr. Justice SEEVERS Concurs with me in this view.

THE STATE OF Iowa, Appellant, vs. SIMEON J. DILLARD and another, Appellees.

Filed December 16, 1879.

Where the evidence in the court below, as to whether or not notice of appeal had been served, is conflicting, its decision will not be disturbed. —[EÐ.

Appeal from Madison district court.

J. F. McJunkin, Attorney General, for the state.
Williamson & Parrott and C. C. Cole, for appellee.

PER CURIAM. The defendants filed in the court below their motion in this case to supply the notice of appeal, which, they allege, has been duly served, and subsequently lost. The case was pending upon appeal in this court. The court below, upon the evidence offered, found that a notice of appeal had been served and afterwards lost, and ordered that it be supplied as a lost record in the case. From this order the state appeals. The evidence before the district court, upon the questions involving the existence of the notice and its service, is conflicting. We cannot, therefore, disturb the order of the court below. It is affirmed.

THE STATE OF Iowa, Appellee, vs. SIMEON J. DILLARD and another, Appellants.

Filed December 16, 1879.

Notice of appeal in this case having been found by the court below to have been served, the decision of State v. Westfall is followed herein. -[ED.

Appeal from Madison district court.

C. C. Cole and Williamson & Parrott, for appellants.
J. F. McJunkin, Attorney General, for the state.

PER CURIAM. This cause was submitted upon a written argument between the attorney general and counsel for defendants, stipulating that it involves the same questions. decided by this court in The State of Iowa v. Benjamin C. Westfull, at the Dubuque October term, 1878, and reported in Iowa, -, and that this case should be decided upon the record in that cause, if we should find that notice of appeal has been served. Regarding ourselves bound by the judgment and decision of the court below, to the effect that notice of appeal has been served, and following our decision in The State v. Westfall, supra, the judgment of the court below must be reversed.

ELIZABETH MCKAY, Appellant, vs. JAMES MALOY, Appellee.

Filed December 16, 1879.

A justice of the peace has no right to demand, on an appeal from his court, the fees allowed by law to the clerk of the circuit court for docketing the entry of such appeal. Where an appeal bond is drawn by a person other than the justice such justice is not entitled to any statutory fee for indorsing upon such bond the fact that it is filed and approved. A person appealing from a justice of the peace cannot, before paying him his fees for making and certifying a transcript on appeal, compel him to surrender control and possession of the transcript by filing the same with the clerk of the circuit court. Plaintiff in this case held entitled to an order requiring justice to act upon an appeal bond as of the date of its first presentation.[ED.

Appeal from Winneshiek circuit court.

The plaintiff filed in the office of the clerk of the Winneshiek circuit court a petition, as follows:

"1. That on the nineteenth day of July, 1878, the defendant, as a justice of the peace, rendered a judgment against the plaintiff, and for one Henry Madison, for $21.95 and costs.

"2. That at the time of the rendition of said judgment the defendant was a duly qualified and acting justice of the peace in and for said county of Winneshiek.

"3. That on the twentieth day of July, 1878, the plaintiff's attorney handed to the defendant a good and sufficient appeal bond, to be used in said cause of Madison v. McKay, and requested the defendant to file and approve the same, and to perfect the appeal in said cause; that the defendant then demanded of said attorney the sum of $2.50 as his fees for filing and approving said bond, and for certifying up the appeal, and the filing fee of the clerk of said circuit court, and refused to certify up said cause until said money had been paid, which sum was not paid as demanded.

"4. That the plaintiff is personally interested in said action; that she now sustains damages by reason of the refusal of defendant to file and approve said bond and certify up said appeal; that an execution has been issued on said judgment in favor of Madison, and a levy made upon the plaintiff's property; asks that an order be made requiring the defendant to recall said execution, to file and approve said bond, and to perfect said appeal."

The defendant answered as follows:

"1. Admits the allegations contained in the first and second counts of the petition; also that plaintiff is person