Severin v. Cole

*464i ad qíiod Sghteofmoi-tgage under. *463— I. The single question presented by this record is, whether a railroad company, by an ad quod damrmm *464proceeding upon notice to a mortgagor alone in possession, the mortgage being upon record, and by tbe paymerLt to ^ie sheriff of the damages assessed, acquires a ^tle to the right of way, free from or paramount to the mortgage. We have no hesitation in answering this question in the negative; and this answer accords with the views of the District Court in sustaining the demurrer.

Our statute (Rev. of 1860, §§ 1314 to 1331) provides that if “ the owners of any real estate ” shall refuse to grant the right of way, then the commissioners appointed to assess the damages, “ by giving the said owner or guardian ñve days’ notice thereof in writing,” etc., may proceed to assess the damages, etc. By sub-division 8 of § 29, it is enacted that “ the word ‘land,’ and the phrases ‘real estate’ and ‘real property,’ include lands, tenements, and hereditaments, and all rights thereto and interests therein, equitable as well as legal.” An owner of real estate then, under our law, is any person who has an equitable right to, or interest in it. A mortgagee is such person. White v. Rittenmeyer, 30 Iowa, 268, and cases cited. The mortgagor, it is true, holds the legal title; but the mortgagee has an equitable interest in, or right to, the mortgaged property, and under the above statute is an “ owner of the real property.” Monroe et al, v. West et al., 12 Iowa, 119; Choteau et al. v. Thompson et al., 2 Ohio State, 114; Dutro v. Wilson, 4 Ohio State, 101. This rule too is equitable and just. The mortgage being of record, it was entirely practicable for the defendant, in obtaining its right of way, to give notice to the mortgagee of record, and thereby protect its own interests and those of such mortgagee or his assigns. If the assignee of the mortgage failed to place the evidence and notice of his ownership upon record, he would doubtless be concluded by whatever would, in such case, conclude his assignor. Under the rule contended for by the appellant’s counsel, a mortgagee would be wholly without protection, for a railroad company might take an entire lot, mortgaged, for its right of way, and upon notice only to the mortgagor, could have the damages assessed, and upon payment to the sheriff, the mortgagor could take it all, and *465leave the mortgagee without any remedy under his mortgage. The railroad company cannot obtain by proceedings under ad quod damnum,, greater rights than it could acquire as an innocent purchaser for value, from the owner to whom notice is given. The case of Ballard v. Ballard Vale Company, 5 Gray, 468, sustains this view; Breed v. Eastern R. R. Co., is' only reported as a note to this case, page 470. The case of Boynton v. Peterborough & Shirley R. R. Co., 4 Cush., 467, is not in conflict with this view, but turns wholly on the technical inheritance by the heir.

2. forecjqosure: right of way. IL The District Court, however, after sustaining the demurrer, rendered a judgment for the sale of the whole lot, including the right of way. The defendant, by ° J UN its proceedings m ad quod damnum, and the payment of the assessed damages, acquired the title to such right of way, subject only to the plaintiff’s prior lien. The judgment of foreclosure should have directed the offer for sale of the lot subject to the defendant’s right of way, and in case the lot would not under such sale sell for enough to pay off the mortgage debt, then to sell such right of way either with the lot or independent of it, as should be found most advantageous. With this modification, at the costs of the appellee, the judgment will be

Affirmed.