The following opinion on rehearing was filed March 8, 1905. Judgment of reversal adhered to and decree entered:
Holcomb, C. J.This action is pending in this court on' appeal. The only question in controversy is with reference to the right of redemption of certain real property sold under a decree duly rendered in a proceeding begun in the district court for the purpose of foreclosing a tax lien existing on and against certain real estate, and directing a sale thereof for the satisfaction of the lien thus established.
After a sale of the land under and in pursuance of the decree rendered in the foreclosure proceedings, and pending an appeal from an order of the district court confirming the sale and directing the sheriff to execute a deed to the purchaser, the owner of the equity of redemption or his grantee asked to be allowed to redeem the property from the decree and sale rendered and made, as above stated. This application to be allowed to redeem was resisted by the appellant in this action, who claims an interest in the property as an assignee of a mortgagee, who was made a party defendant in the tax foreclosure proceedings and served by publication, but who failed to appear or plead in the action, and whose default was duly entered of record. The appeal was thereupon dismissed and the cause remanded to the district court, so that redemption from the decree and sale might be effectuated. In the district court it was held that the appellee had effected a redemption of the land from the decree and the sale had thereunder, and it was adjudged that he took the land free from the lien created by the mortgage executed by the owners of the land in favor of the appellant’s assignor, a party defendant in the foreclosure proceedings as aforesaid. This decree was on a former hearing reversed. Carly v. Boner, cmte, p. 671.
1. Some confusion apparently has arisen in respect of an interlocutory order or memorandum opinion entered by this court in the appeal proceedings from the order of confirmation of sale under the tax foreclosure decree, with reference to the question of the right of redemption. When *676application to redeem was made in this court during the pendency of the appeal' proceedings and objections ihterposed it. was announced that the owner of the equity of redemption (or his grantee) had the right to redeem the property from the decree and sale thereunder; and this whether the tax lien was owned by the tax purchaser or had been transferred to the mortgagee or her assignee. It was further found that the mortgagee or her assignee was entitled to redeem from the tax lien, but was not entitled to redeem the property sold under the decree of foreclosure. It was especially stated that as to the jurisdiction of the court to make an order on the questions raised by the record — that is with reference to the right of redemption — the question of jurisdiction, not having been discussed, is not determined, and no adjudication of the rights of the parties is made at this time.
It will thus be seen that there was no such adjudication on the question of the right of redemption as to make the interlocutory order res judicata as to the rights of the respective parties to redeem so as to become the law of the case. The order entered is to the effect that the right of redemption of the land from the decree and sale belonged to the owner of the equity of redemption, and that a mortgagee’s right of redemption is restricted to redeeming or •discharging the tax lien for the purpose of preserving and protecting his security, by adding the amount thus required to redeem the tax lien to his indebtedness, or by being subrogated to the rights of the owner of the tax lien as thus redeemed. The right of the owner of the equity of redemption to redeem the real estate from the decree and sale was deemed paramount, and it was so stated.
2. The right to redeem the property from the decree and sale is a right belonging to the owner of the equity of redemption or his grantee, and is given by statute. Sec. 497a of the code. It is a right of redemption which differs essentially from the equity of redemption proper. The statutory right of redemption from sale, as distinguished from the equity of redemption, is usually self executing, *677and, to enjoy the benefit thereof, no proceedings are ordinarily required to be had in the courts to make such right effective. The appellee has taken advantage of this statutory right of redemption from sale, and has redeemed the property, and the order confirming such redemption to the extent that it recognized the right as being in the appellee, was right and proper and the only one which , ought to have been entered.
3. The appellant objects to the appellees’ being allowed to redeem the land from the decree and sale thereunder, unless it be without prejudice to his. alleged rights as the assignee of the mortgagee of the land thus- sought to be redeemed. Whether the redemption be with or without prejudice to the appellant would, it seems, depend upon the question of the force and effect of the decree under which the sale was made. If the lien of the mortgage is merged in or barred by the decree, the judgment in the action is an adjudication of the appellant’s rights and interest in the land, from the consequences of which he can not escape. But this question is not properly before us,
, nor is it within the issues raised by the appellees’ application to redeem. In the exercise of his statutory right with reference to redemption, the scope and effect of the decree as to appellant’s lien by virtue of the mortgage under which he claims is not properly involved, and this question has never been fairly nor fully presented, and we do not, therefore, herein undertake to determine it. The reversal of the decree of the district court heretofore entered is adhered to, and a decree will be entered herein confirming and establishing the appellees’ right of redemption heretofore effectuated.
Judgment accordingly.