Atherton v. Dearmond
Supreme Court of Iowa
Appeal from Ringgold District Court. Proceeding to foreclose a mortgage given to secure a Jiromissory note, executed by defendant to plaintiff. Service of the original notice was made by publication, and, defendants failing to appear, default and a decree of foreclosure thereon was rendered. Defendants, subsequently appearing, claimed a re-trial, as provided for by the statute.
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Appeal from Ringgold District Court. Proceeding to foreclose a mortgage given to secure a Jiromissory note, executed by defendant to plaintiff. Service of the original notice was made by publication, and, defendants failing to appear, default and a decree of foreclosure thereon was rendered. Defendants, subsequently appearing, claimed a re-trial, as provided for by the statute. They filed their answer to the petition, setting out substantially that the note and mortgage were given under the following circumstances: The defendant, "William Dearmond, was arrested for robbery, and held for a…
1Opinion of the Court
Beck, Ch. J.
The answer, as a defense to the action upon the ■ note and mortgage, sets up a contemporaneous parol contract under which defendants claim a partial discharge of the instruments. This contract shows an intention of both parties, in conflict with that embodied in the *355note and mortgage. It alters the conditions of the contract actually embodied in the- written instruments and defeats them. It is pleaded for the purpose of contradicting and varying the contract of the, parties set out in the note and mortgage. There is no principle of law more familiar than that one which declares…
2Cases cited1 opinion
- Gelpcke v. BlakeSupreme Court of Iowa · 1863
3Cited by14 opinions
- Kelly v. Chicago, Milwaukee & St. Paul Railway Co.Supreme Court of Iowa · 1895
- Dickson v. HarrisSupreme Court of Iowa · 1883
- Simpson Centenary College v. BryanSupreme Court of Iowa · 1878
- Welles v. Colorado National Life Assurance Co.Supreme Court of Colorado · 1910
- Smith v. BreedingSupreme Court of Iowa · 1923
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