I find myself unable to agree with the majority opinion, and therefore respectfully dissent.
Application for the second continuance was made in the name of A.R. Shepherd, Elizabeth Booth Shepherd, and A.R. Shepherd, executor of the will of W.T. Shepherd.
The lower court found, and I believe rightly so, that A.R. Shepherd became the owner of the real estate involved herein, under the last will and testament of W.T. Shepherd, subject to certain bequests made in said will and claims filed against the estate, and as he was the owner of the real estate he was entitled to the benefits of the statute.
The main ground upon which the lower court denied the application, in fact, as I read the order entered, the only ground, is that A.R. Shepherd is not one about to lose his property because of the present economic condition, and therefore not entitled to the benefits of the statute.
The Legislature passed this act with the thought and belief in mind that it would assist the people of Iowa in the refinancing of their mortgages, and we have said that this act is to be liberally construed. This is a case in which there is no attempt to deprive the mortgagee of the rents, nor is the case one in which there is any showing that the farm cannot be refinanced. The act provides that there must be good cause shown why the continuance will not be granted. In the judgment of the majority, the good cause is the fact that A.R. Shepherd is not in financial distress. True, he is not in financial distress, but, under this record, if he were now to refinance this mortgage he would be compelled to pay the creditors of the estate and assume the payment of the annuity to the widow. While the record does not set it out, if he undertook to do these things he might be in financial distress, as there are a large number of claims against the estate and the widow is left an annuity of $1,500 a year during her lifetime.
Admittedly, there is a substantial equity in the land, because one buyer has sought to purchase it in a sum in excess of the amount of the mortgage. *Page 134
In face of such a record I think the order for continuance should have been granted, and I would reverse the case.
I am authorized to state that KINTZINGER, J., concurs in this dissent.