Clarke v. Bancroft, Beaver & Co.
Supreme Court of Iowa
Appeal from Henry District Court. The facts are stated in the opinion of the court. David Borer for the appellant, contended that though complainant’s mortgage was executed before the one under which respondents claim, yet it is not entitled to priority, for it is not alleged in the petition, or any where proved, to have been on record, or within the knowledge of the respondents, or those under whom- they claim.
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Appeal from Henry District Court. The facts are stated in the opinion of the court. David Borer for the appellant, contended that though complainant’s mortgage was executed before the one under which respondents claim, yet it is not entitled to priority, for it is not alleged in the petition, or any where proved, to have been on record, or within the knowledge of the respondents, or those under whom- they claim. The complainant avers, in his replication, that it was recorded but does not state when. The complainant cannot make a case on hi's replication. He must recover allegata et probata on…
1Opinion of the Court
- Baldwin, C. J.
This was a proceeding to foreclose a mortgage executed by Ray and wife.
The premises mortgaged were purchased by Ray of complainant, and the mortgage in suit given in'security for a portion of the purchase money. After the land was sold by the complainant, Ray sold the same to one Coovert, receiving, in consideration therefor, the notes of Coovert, secured by a mortgage on said premises. Bancroft, Beaver *323& Co. claim to have certain equities in said land, as tbe assignees of tbe Coovert notes and mortgage. Ray, when be purchased from tbe complainant, agreed to pay, in…
2Cases cited1 opinion
- Shepard v. FordSupreme Court of Iowa · 1860
3Cited by4 opinions
- Ocobock v. BakerNebraska Supreme Court · 1897
- Cutler v. AmmonSupreme Court of Iowa · 1884
- First Nat. Bank of Rock Springs v. RoderCourt of Appeals for the Eighth Circuit · 1902
- State v. OwensSupreme Court of Iowa · 1899