Suchan v. Suchan , 113 Idaho 102 ( 1987 )

HUNTLEY, Justice.

The magistrate court entered a judgment and decree of divorce on March 22, 1982 dissolving the twenty-eight year marriage of George and Carmen Suchan. After a hearing in which George and Carmen proposed distributions of the property the magistrate entered a document entitled “Partition Order” on March 10, 1982. Carmen’s attorney had drafted the order which awarded each party a value of $445,844.40.

George was awarded personal property, including farm equipment, plus all the community real property. George was directed to assume all community debts, including the outstanding mortgages on the real property. The order stated explicitly the magistrate court’s intent that George have immediate possession of all the real property so he could continue farming.

The order awarded Carmen various items of farm equipment and other personal property and directed George to pay Carmen $373,739.40 essentially representing the value of Carmen’s community property interest in the farm land awarded to George. George was to pay Carmen $100,-000 within forty-five days of the order and to pay the balance of $273,739.40 in twenty annual installments, with twelve percent annual interest. The order required George to execute a promissory note for this balance, secured by a mortgage on all the real property awarded him by the order.¹

After contacting various lenders, George could not obtain a loan to make the $100,-000 payment within the forty-five day limit. The magistrate court, on July 8, 1982, issued an order to show cause as to why the court should not hold George in contempt for his nonpayment of the $100,000, and why immediate payment should not be ordered, even if that would require immediate sale of the real property. George filed a motion to stay further proceedings upon the judgment and partition order. He argued a sale would irreparably injure him.

The magistrate court, on July 22, 1982, granted a stay of execution pending George’s appeal of the judgment and partition order. However, the court required that George post a supersedeas bond of $150,000 to cover the amount of the judgment, costs of appeal and any damages resulting from the appeal. At Carmen’s request the magistrate court issued a supplemental order to the order granting stay of execution which provided Carmen’s money judgment would accrue interest at eighteen percent per year from the date of the partition order to the date of the $100,000 payment.

On August 30, 1982 the district court affirmed the judgment, divorce decree, and partition order. George appealed to this Court, which affirmed the district court in Suchan v. Suchan, 106 Idaho 654, 682 P.2d 607 (1984).

On November 8, 1982, Carmen, having received no money from George (or his promissory note or mortgage) obtained a writ of execution for the sale of George’s real and personal property. Carmen sought payment of the initial $100,000 plus eighteen percent annual interest on the entire award of $373,739.40 from the May 10, 1982 date of the partition order to the date of payment of the $100,000. Notice of the execution sale was published with the sale date set for December 15, 1982. On that date the sale took place, in the face of George’s inability to show cause why the sale should not proceed and his inability to post the supersedeas bond.

The sale brought in $60,552.50 for George’s farm machinery and his 868 acres. George directed the sheriff to sell the land in seven parcels. George’s brother, Frank Suchan, bought 820 acres in six parcels for a total of $13,500, subject to outstanding mortgages. Amalgamated Sugar Company bought the seventh parcel for $28,000, subject to its assumption of certain indebtedness. The sheriff returned the writ of execution unsatisfied.

Within forty-eight hours of the sale, George quitclaimed his right of redemption in the real property executed upon to his brother, Frank, and his mother, Myra Suchan, for a total of $2,000.

About a week later, on December 23, 1982, Carmen presented to George a promissory note, mortgage and other security instruments for his signature. George refused to execute them on the grounds the execution sale divested him of any mortgageable interest he had in the property. In response Carmen sought to have George held in contempt of the partition order and to obtain a court order requiring his execution of the documents. The magistrate court, in an order dated February 4, 1983, held George was not in contempt and refused to require him to sign the instruments.

Meanwhile, on January 24, 1983, Carmen also began proceedings for vacation of the execution sale for inadequacy of price coupled with alleged irregularities in the sale. On April 1, 1983, the magistrate court denied Carmen’s motion.

On January 25,1983, Carmen brought an independent action in district court. She alleged George fraudulently conveyed his statutory right of redemption in the property sold at execution to his brother, Frank, and his mother, Myra. The district court held (both initially and again on reconsideration) Carmen could have no interest in George’s right of redemption and therefore lacked standing to allege its fraudulent conveyance. The appeal designated Supreme Court No. 15143 arose from that decision.

Carmen then appealed to the district court from the magistrate court’s refusal to vacate the execution sale and its refusal to order George to execute a note and mortgage. The district court affirmed the magistrate court ruling that the partition order immediately conveyed Carmen’s undivided one-half community real property interest to George and awarded a money judgment to Carmen. The court also held Carmen had no interest in the real property sold at execution and that the sale divested George of any mortgageable interest in the real property awarded him under the partition order. Because George had no mortgageable interest, the court could not require George to execute a mortgage after the execution sale. The district court also refused to vacate the sale on grounds of law or equity. Appeal No. 15460 arose from that decision.

Before the district court entered the latter opinion, Carmen filed a petition for writ of mandate and an alternative co'mplaint for quiet title and moved for summary judgment with respect to each. The district court held the prior ruling that the partition order conveyed Carmen’s one-half community property interest to George was dispositive of this issue in favor of George. With respect to the quiet title action, the decision from which case No. 15460 arose held Carmen had no mortgage interest in the property sold at execution. The district court ruled that it therefore followed that Carmen could therefore not be a redemptioner under I.C. § 11-401(2). Finally, the district court held Carmen had no subsequent judgment lien for the $273,-739.40 remaining due after she had executed upon George’s land for the initial $100,000 payment. Appeal No. 15512 arises from those rulings.

ISSUES ON APPEAL

This case presents the issues of whether the lower courts erred in: (I) interpreting the partition order as itself immediately conveying certain real property to respondents and in ruling Carmen had no judgment lien in the real property after its execution sale; (II) refusing to vacate the execution sale of that property based on an allegedly inadequate price coupled with irregularities in the sale; (III) ruling appellant had no equitable mortgage in the property sold; (IV) ruling appellant held no mortgage interest in respondent’s statutory right of redemption; and (V) determining appellant was not a redemptioner with respect to the property sold.

I. CARMEN SUCHAN’S INTEREST IN THE REAL PROPERTY SOLD AT EXECUTION

After the execution sale, Carmen Suchan sought, in magistrate court, an order to show cause as to why George Suchan should not be held in contempt for refusing to execute a mortgage securing Carmen’s alleged interest in all the real property awarded George by the partition order. The partition order directed that the $273,-739.40 portion owed Carmen be reduced to a promissory note and “secured by a real estate mortgage on all of the real property awarded to the Defendant____” (Emphasis added.) The magistrate court interpreted the partition order as having immediately conveyed Carmen’s undivided one-half community real property interest to George. The magistrate found that all the real property awarded to George by the partition order had been sold. Since the only real property awarded to George by the partition order was Carmen’s one-half community real property interest, the magistrate necessarily determined the partition order had conveyed that property to George. (The magistrate concluded George had no real property interest in which to give Carmen a mortgage interest.)

A. CARMEN’S INTEREST BEFORE EXECUTION

In Supreme Court No. 15460 Carmen argues the magistrate court misinterpreted the partition order as immediately conveying Carmen’s community real property interest to George. The standard of our review of the magistrate courts’ interpretation depends upon whether the order contained an ambiguity. The rules of construction of contracts and written documents in general apply to the interpretation of court orders. Evans v. City of American Falls, Idaho, 52 Idaho 7, 18, 11 P.2d 363 (1932); In re Callnan’s Estate, 70 Cal.2d 150, 74 Cal.Rptr. 250, 449 P.2d 186 (1969); Fidelity Union Trust Co. v. Byrne, 76 N.J.Super. 256, 184 A.2d 163 (1962). Interpretation of an ambiguous document presents a question of fact. Cf. Roberts v. Hollandsworth, 582 F.2d 496, 499 (9th Cir.1978) (contract case); Pollard Oil Co. v. Christensen, 103 Idaho 110, 115, 645 P.2d 344, 349 (1982) (contract case). On the other hand, interpretation of an unambiguous document presents a question of law. Cf. Suchan v. Suchan, 106 Idaho 654, 660, 682 P.2d 607, 613 (1984) (contract case); Beal v. Mars Larsen Ranch Corp., Inc., 99 Idaho 662, 668, 586 P.2d 1378, 1384 (1978).

Determination of whether a document is ambiguous is itself a question of law. Cf. Pocatello Industrial Park, Co. v. Steel West, Inc., 101 Idaho 783, 789, 621 P.2d 399, 405 (1980) (contract case). We now turn to those provisions of the partition order awarding to George Carmen’s one-half community real property interest to determine whether they are ambiguous. Rutter v. McLaughlin, 101 Idaho 292, 293, 612 P.2d 135, 136 (1980) (contract case). Carmen strenuously argues the conveyance of Carmen’s interest to George was “subject to,” or conditioned upon, George’s payment of the initial $100,000, and his execution of a promissory note for $273,739.40 and a mortgage interest in all the real property awarded to George by the partition order. Carmen cites the following language of the order:

The Defendant [George] is awarded as his sole and separate property the following real estate subject to the payment of all outstanding encumbrances thereon, and the payment and security provisions hereinafter required to be made by him for and on behalf of Plaintiff. (Emphasis added.)

The order goes on to identify the security provisions referred to above:

DEFENDANT IS ORDERED TO PAY PLAINTIFF: the sum of $100,000.00 cash within forty-five (45) days of the date of this order. The balance of the Plaintiff’s community interest in the sum of $273,739.40 shall be paid to the Plaintiff [Carmen] by the Defendant [George] in twenty (20) annual installments____ The balance shall be reduced to a promissory note to be secured by a real estate mortgage on all the real property awarded to the Defendant [George]____ (Emphasis added.)

Carmen asserts the order unambiguously makes George’s receipt of Carmen’s interest in the real property “subject to,” that is, conditioned upon, George’s first making the $100,000 payment and executing the note and mortgage. However, the first provision quoted above also makes the award of Carmen’s interest to George “subject to the payment of all outstanding encumbrances thereon ____” These outstanding encumbrances consisted primarily of mortgages totaling over $100,000. The parties do not contend, and the record nowhere suggests, that George’s payment in full of these outstanding encumbrances was a condition to his receiving Carmen’s real property interest. In light of this, the “subject to” language conditions George’s retention, rather than his receipt, of Carmen’s interest upon George’s payment of the outstanding encumbrances on the property. Since the “subject to” language also applies to George’s execution of the mortgage, and since the magistrate likely intended “subject to” to have a single meaning, the order can reasonably be interpreted as conditioning George’s retention, rather than his receipt, of Carmen’s community interest upon George’s execution of the mortgage at some appropriate time in the future (such as after the initial $100,000 payment).

Other language in the order suggests the issuing court intended the order to convey Carmen’s interest to George immediately, and therefore prior to George’s execution of the note and mortgage:

IT IS ORDERED that the undivided one-half (V2) interest of Plaintiff [Carmen] and Defendant [George] in the community property of the parties hereto, as decreed in the judgment and decree of divorce filed on the 23rd day of March, 1982, be, and the same is partitioned and distributed to the parties hereto subject to the conditions and terms as set out and required herein.

The Defendant [George] ... has received under the provisions of this partition, all of the farm real estate____ (Emphasis added.)

This language allows the reasonable interpretation that the order immediately conveyed Carmen’s one-half community real property interest to George, though George had not yet executed a note and mortgage in favor of Carmen.

Additional language of the order, by negative implication, suggests the order did not condition George’s receipt of Carmen’s community real property interest upon George’s execution of a note and mortgage:

IT IS ORDERED that the down payment of the $100,000.00, hereinabove ordered, shall include the $30,000.00 for the home awarded to the Plaintiff [Carmen] as and for the community lien thereon. The Plaintiff [Carmen] shall, accordingly, execute and deliver a quitclaim deed conveying the separate property upon which the home is situated to the Defendant [George], upon the receipt of the down payment and delivery of the executed note and mortgage and related sales documents. (Emphasis added.)

This provision expressly conditions George’s receipt of any interest Carmen might have had in George’s separate real property upon George’s execution of the note and mortgage. Nowhere does the order expressly condition George’s receipt of Carmen’s interest in the community real property upon George’s execution of the note and mortgage. This suggests the drafter intended to omit the execution of the note and mortgage as a condition to George’s receipt of Carmen’s community real property interest.

The foregoing discussion shows one could reasonably interpret the partition order as requiring George to execute a note and mortgage in favor of Carmen as either a condition to George’s receipt of Carmen’s community real property interest, or merely as a condition to George’s retention of that interest, after the order had immediately conveyed it to him. The order, being reasonably subject to conflicting interpretations, is ambiguous. Rutter v. McLaughlin, 101 Idaho 292, 293, 612 P.2d 135, 136 (1980) (contract case). On review we must therefore accept the magistrate court’s interpretation unless clearly erroneous, particularly where he is interpreting his own order. I.R.C.P. 52(a) (1983); Rueth v. State, 103 Idaho 74, 77, 644 P.2d 1333 (1982); Javernick v. Smith, 101 Idaho 104, 106, 609 P.2d 171, 173 (1980).

The order’s language provides substantial, though conflicting, evidence that the magistrate court intended the order to immediately transfer Carmen’s community real property interest to George. Carmen directs our attention to nothing in the record making that interpretation clearly erroneous.

Moreover, the magistrate interpreted the order consistently with the general rule that written documents, if ambiguous, should be construed against the drafter. Cf. Morgan v. Firestone Tire & Rubber Co., 68 Idaho 506, 519, 201 P.2d 976 (1948) (contract case). Carmen’s attorney drafted the partition order. In light of this factor and the preceding analysis of the order’s language, we affirm the magistrate court’s interpretation of the order as immediately vesting Carmen’s interest in the farm in George.

In Supreme Court No. 15512, Carmen argues the district court improperly invoked res judicata and collateral estoppel to bar her from litigating the issue of whether the partition order immediately conveyed her community real property interest to George. The district court said the same issue had been fully and finally litigated by the same parties in the magistrate court. The magistrate court’s opinion is discussed above. The magistrate court in its opinion dated February 4, 1983, held the order of partition conveyed and vested in George all of Carmen’s interest in real property. Since we have found this conclusion supported by substantial evidence, we affirm the district court’s decision from which the appeal designated Supreme Court No. 15512 arises.

B. STATUS OF CARMEN’S JUDGMENT LIEN AFTER EXECUTION SALE

Carmen’s attorney announced prior to the execution sale of each parcel of real property that it was being sold subject to Carmen’s continuing lien. Carmen certainly had a judgment lien in the property prior to the execution sale because her lien provided the very basis for the execution sale itself. See I.C. §§ 10-1110 (1982); 11-101 (1982); 11-104 (1982); 11-201 (1982); 11-301 (1982).

However, the Idaho Code entitled Carmen to a judgment lien in the property of only the judgment debtor, George. See I.C. § 10-1110 (1982). Since judgment liens are creatures of statute, Carmen’s rights must be adjudicated within the statutory framework. Messenger v. Burns, 86 Idaho 26, 29, 382 P.2d 913, 914-15 (1963). Once George’s property was sold at execution and the certificate of sale was delivered to the execution purchaser, conveying legal title to him, then Carmen lost her judgment lien against the property sold. See I.C. § 10-1110 (1982); Petty v. Petty, 70 Idaho 473, 478-79, 223 P.2d 158, 160-61 (1950).

Furthermore, Carmen levied execution on George’s property for satisfaction of his matured debt of $100,000 plus interest. By her failure to bid the $100,000 plus interest, Carmen did not preserve her judgment lien for this amount. Therefore, she retained no lien in the property sold at execution. It should also be noted that George’s remaining debt of $273,739.40 had not matured at the time of the execution sale. (The partition order contained no acceleration clause.) Hence, the remaining debt could not have been the basis of a judgment lien in favor of Carmen at the time of execution. Furthermore, by the time the initial installments of the $273,739.40 debt became due, George, the judgment debtor, had no interest in the land previously sold at execution. Carmen could not have had a lien in property no longer owned by the judgment debtor. See I.C. § 10-1110 (1982).

II. EXECUTION SALE

In Supreme Court No. 15460, Carmen argues for reversal of the district court’s affirmance of the magistrate court’s refusal to vacate the execution sale. She asserts the grossly inadequate sale price coupled with irregularities in the sale requires vacation of the sale.

Carmen focuses on two alleged irregularities. First, she alleges she proceeded with the execution sale laboring under an interpretation of the partition order subsequently rejected by the courts, all to her detriment. However, Carmen’s misunderstanding of her legal rights, though unfortunate, is not an irregularity in the sale ‘itself, particularly since she was represented by counsel at all stages.

The second irregularity alleged by Carmen is that a 494 acre farm tract irrigated from a single well was sold in several 160 acre parcels, all but one of which lacked an independent source of water. This, combined with the alleged grossly inadequate sale price, justifies vacation according to Carmen.

In general, gross inadequacy of price coupled with irregularities in the sale warrants vacation. Gaskill v. Neal, 77 Idaho 428, 432, 293 P.2d 957, 960 (1956); The Federal Land Bank of Spokane v. Curts, 45 Idaho 414, 425, 262 P. 877, 880 (1927). Whether to set aside an execution sale lies largely within the trial court’s discretion. Gaskill, 77 Idaho at 433, 293 P.2d at 960.

In both Gaskill and Curts the sheriff conducting the execution sale sold the property in parcels, rather than as a unit, at the direction of persons not authorized to direct the manner and order of sale. Each court held this to be an irregularity in the sale. In the instant case, George, the execution debtor, directed the order of sale of parcels under the express statutory authority of I.C. § 11-304 (1982). In Gaskill, a house and garage lay partly on each of the two parcels sold. No similar factor exists in this case. The sheriff in Gaskill and Curts also improperly ignored the highest bid offered at the sale and instead accepted a much lower bid. This irregularity did not occur in the instant case, where the sheriff accepted only the highest bid.

Real property at execution must be sold in known lots or parcels. I.C. § 11-304 (1982). The factors indicating land does not consist of known lots or parcels include the fact the land is contiguous; owned and farmed as one tract; or that marks or circumstances are not available to 'distinguish one lot from another. Curts, 45 Idaho at 424, 262 P. at 880. In the instant case, although the land was contiguous, it had been leased out and farmed in several parcels on prior occasions. Furthermore, the magistrate court found the boundaries of the parcels were established by survey markers as well as farm and county roads. The notice of sale itself, drafted by Carmen’s counsel, described the land in five separate parcels, and the land was sold in those same parcels.

Carmen also asserts several parcels were not economically viable units, that is, units adapted for separate and distinct enjoyment, because they lacked independent water sources. However, George announced before the sale of each parcel lacking an independent water supply that arrangements would be made for the parcels to-continue receiving water from the central well for a reasonable price. George had made such arrangements with lessees of portions of the very same parcels in prior years. As a result, the magistrate court found the 160 acre parcels were farmable units and there is substantial competent evidence in the record to support that finding.

In general, parcels not adapted for separate and distinct enjoyment should be sold as a unit. However, under I.C. § 11-304 if the party directing the order of sale can show in an intelligible manner the particular way in which the property can be profitably sold in. parcels, the general rule will not apply and the sheriff must follow his directions. Gaskill, 77 Idaho at 432, 292 P.2d at 960. Three of the lots sold without an independent water source had no encumbrances upon them. George might reasonably have believed the sale of unencumbered property and parcels would re suit in the highest possible bids, while minimizing the amount of property sold to satisfy Carmen’s lien. Selling in parcels probably also placed individual parcels within a price range of more bidders. Greater numbers of bidders could reasonably be expected to increase bid amounts. Therefore, the sale in parcels, even if those parcels were not adapted for separate and distinct enjoyment, was a reasonable means of selling the land profitably. Hence, it was not irregular. Gaskill, 77 Idaho at 432, 293 P.2d at 960.

Carmen asserts the sale brought a grossly inadequate price, which when coupled with the alleged irregularities, requires us to set aside the sale. In Gaskill, the sale brought $426.12 for $11,000 worth of property, less than four percent of the value. In Curts, the sheriff ignored a bid of $8,700 (suggesting a minimum value for the land) and accepted a $300 bid for 240 acres of land—again less than four percent of the value, conservatively assuming the land was worth at least as much as the ignored bid. (The sheriff ignored the bid because it was written and the bidder was not present at the sale. The court held the sheriff should have accepted the bid.)

At the sale in issue, Frank Suchan bought 800 acres for $12,000 and assumed an outstanding mortgage of $59,000. This made the effective purchase price $71,000. While the land had been appraised at the time of the partition order at $680,000, evidence of the value at the time of sale put the value at about $300,090. Several factors could explain the low purchase price: (1) a water permit allowing irrigation of only 480 acres (though 494 acres were irrigated in fact); (2) depressed market prices for farm land; (3) rock outcroppings on the land; (4) the fact Carmen’s attorney announced prior to the sale of each parcel that it was being sold subject to Carmen’s continuing lien; and (5) the fact forced sales commonly produce low prices. In light of these factors relevant to the adequacy of price, and Carmen’s failure to prove any irregularity in the sale, we cannot say the magistrate court abused its discretion in refusing to vacate the execution sale. Gaskill, 77 Idaho at 433, 293 P.2d at 960.

III. EQUITABLE MORTGAGE

Carmen asserts the partition order entitles her to a mortgage interest in all the real property awarded George by the order. The order directed George to execute a note and mortgage in favor of Carmen in the amount of $273,739.40. George never executed the note or mortgage.

A mortgage interest can exist only in real property capable of being transferred. I.C. § 45-1001 (1982-83). The execution sale divested George of all the real property awarded him by the partition order, except for his right of redemption. He conveyed that away two days after the sale. Since George has no interest in the real property awarded him, he cannot be compelled to execute a mortgage on that property.

Carmen argues in the alternative for an equitable mortgage. If the magistrate court intended the order of partition to create a mortgage, which later turned out to be legally ineffective, then an equitable mortgage might have arisen. The four prerequisites of an equitable mortgage are: (1) intent of the court to create a mortgage; (2) a debt, definite in amount, due from the mortgagor to the mortgagee; (3) a definite parcel of real property to which the mortgage can attach; and (4) the mortgagor has an interest in the property capable of being mortgaged. Orono Pulp & Paper Co. v. United States, 34 F.2d 714, 717 (D.C.Me.1929); Barnett v. Waddell, 248 Ala. 189, 27 So.2d 1 (1946); See Dickens v. Heston, 53 Idaho 91, 21 P.2d 905, 90 A.L.R. 953 (1933).

We look to the language of the partition order to gather the issuing court’s intent. The order instructed George that “The balance [due Carmen after the initial $100,000 payment] shall be reduced to a promissory note ... to be secured by a real estate mortgage on all the real property awarded to the Defendant [George].” The issuing court certainly intended that George create a mortgage at some future time, such as after the $100,000 payment. However, neither the language of the order nor the circumstances existing at the time of its preparation support the conclusion that the magistrate court intended the partition order itself to create a mortgage. Instead the order directed George to execute a mortgage instrument which would itself create the mortgage. We therefore affirm the decisions of the magistrate and district courts finding Carmen not entitled to an equitable mortgage.

IV. MORTGAGE INTEREST IN GEORGE’S STATUTORY RIGHT OF REDEMPTION

In the district court Carmen brought suit alleging George fraudulently conveyed his statutory right of redemption in the real property sold at execution. George conveyed that right to his brother, Frank, and his mother, Myra, within two days after the execution sale. In response to Carmen’s suit, George moved for summary judgment.

The district court reviewed Carmen’s legal rights and determined she had no right to levy upon George’s right of redemption. Absent an interest of Carmen in George’s redemption right, the district court concluded Carmen had no standing to allege fraudulent conveyance of the redemption right and granted George’s motion for summary judgment.

On appeal in Supreme Court No. 15143 Carmen asserts the district court decided the wrong legal issue. Carmen argues that although she may not have had a right to levy on George’s redemption right, as decided at trial, she nevertheless had a mortgage interest in it. Carmen reasons that the execution sale involved a levy upon George’s land only for the initial $100,000 payment plus interest. George still had an obligation to execute a mortgage securing Carmen’s remaining judgment amount of $273,739.40 in any realty awarded George by the partition order remaining after the execution sale, such as his right of redemption, according to Carmen.

If real property is transferable, then it is mortgageable. I.C. § 45-1001 (1982); Evans v. Humphrey, 51 Idaho 268, 272, 5 P.2d 545 (1931). Carmen concludes that George’s right of redemption, a transferable right, was subject to her mortgage interest. However, as previously discussed, George transferred his right of redemption prior to executing any mortgage in favor of Carmen. He no longer had an interest in which to give Carmen a mortgage. Furthermore, Carmen is not entitled to an equitable mortgage for reasons previously discussed. Therefore, Carmen had no mortgage interest in the right of redemption which George conveyed away.

V. CARMEN’S REDEMPTION RIGHTS

Carmen asserts she has redemption rights in the real property sold at execution. The statute applicable to this issue says:

11-401. Redemption — Persons entitled to make. — Property sold subject to redemption, as provided in section 11-310, or any part sold separately, may be redeemed in the manner hereinafter provided, by the following persons, or their successors in interest:

2. A creditor having a lien by judgment or mortgage on the property sold, or some share or part thereof, subsequent to that on which the property was sold. The persons mentioned in the second subdivision of this section are, in this chapter, termed redemptioners.

Carmen argues the partition order’s distinction between the $100,000 initial payment and the amount of $273,739.40 to be paid over twenty years and secured by a note and mortgage constituted two separate judgments. She asserts the award of the $273,739.40 was a judgment subsequent to the award of $100,000.

The partition order identifies the $100,-000 as a “down payment” and the $273,-739.40 as the “balance.” These terms are generally used to identify different parts of a single judgment, not to identify two judgments. Furthermore, the proceedings below consistently refer to Carmen’s interest as “a” lien or “the” money judgment. Therefore Carmen had only one lien, the one which she executed. She had no liens separate from or subsequent to the liens she executed upon. She is therefore not a redemptioner under I.C. § 11-401(2).

Affirmed. Costs to respondents. No attorney fees awarded.

DONALDSON, C.J., and SHEPARD, BAKES and BISTLINE, JJ„ concur.

1 . The title of “Partition Order" was somewhat of a misnomer in that it did not effect a partition of the real estate.