Wahl v. Phillips
Supreme Court of Iowa
Appeal from, Delaware District Court. Plaintiee held the note of defendant, secured by a mortgage. In April, 1859, he obtained a judgment at law on this note, and subsequently, in July of that year, filed his bill to foreclose the mortgage. His petition recites the note, the mortgage, the judgment obtained thereon, avers that this judgment remains unpaid, and asks a decree of foreclosure. To this bill he makes Phillips and certain incumbrancers parties.
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Appeal from, Delaware District Court. Plaintiee held the note of defendant, secured by a mortgage. In April, 1859, he obtained a judgment at law on this note, and subsequently, in July of that year, filed his bill to foreclose the mortgage. His petition recites the note, the mortgage, the judgment obtained thereon, avers that this judgment remains unpaid, and asks a decree of foreclosure. To this bill he makes Phillips and certain incumbrancers parties. Phillips demurred for the reason that the court had no jurisdiction, and on the further ground that the petition failed to show a right to…
1Opinion of the CourtWright, J.
The question made is, whether in this State a mortgagee can bring his bill to foreclose, after having taken a judgment at law on the note or debt secured by the mortgage ? Our conclusion is, that under the facts disclosed in this bill, the judgment at law was no bar to the foreclosure proceedings.
Guided by what we understand to be the spirit and policy of the statute, as indicated by §§ 1210 and 2086-7, we incline to the opinion that if there are no incumbrancers, or parties in interest, other than the mortgagor and mortgagee, the mortgagee, if he elects to proceed upon his bond or note, he…
2Cited by6 opinions
- State ex rel. School Fund v. LakeSupreme Court of Iowa · 1864
- Patterson v. LinderSupreme Court of Iowa · 1863
- Moores v. EllsworthSupreme Court of Iowa · 1867
- County of Dubuque ex rel. School Fund v. KochSupreme Court of Iowa · 1864
- Smith v. MooreMissouri Court of Appeals · 1893
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