Foster v. Paine
Supreme Court of Iowa
Appeal from Davis District Gov/rt. Action to foreclose a mortgage. The petition showed that in 1873 the plaintiff, James M. Foster, sold to the defendant, Jesse Fisk, certain land in Davis county; that Fisk executed to him his promissory notes for the purchase money and gave a mortgage to secure the same upon the land; that in 1876 Fisk sold and conveyed the land to the defendant, H. H. Draper, who assumed the payment of the mortgage debt; that afterwards it was arranged…
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Appeal from Davis District Gov/rt. Action to foreclose a mortgage. The petition showed that in 1873 the plaintiff, James M. Foster, sold to the defendant, Jesse Fisk, certain land in Davis county; that Fisk executed to him his promissory notes for the purchase money and gave a mortgage to secure the same upon the land; that in 1876 Fisk sold and conveyed the land to the defendant, H. H. Draper, who assumed the payment of the mortgage debt; that afterwards it was arranged between the plaintiff, Draper and Fisk that the notes due plaintiff from Fisk should be taken up and that new notes…
1Opinion of the Court
Adams, On. J.
^auooüaUou : attorney!1’oI -The question presented arises upon the construction which should be given to the power of attorney. Was 'it the plaintiff’s intention, as evidenced by the instrument, to abandon or retain his security upon the land? If the latter the attorney had no power to cancel the old mortgage without taking a new one upon the land.
It is certain that the attorney was to take a new mortgage upon something. But no other land is indicated, even by the remotest reference, nor is the attorney vested with any power to determine the sufficiency of a new security. It…
2Cited by1 opinion
- Foster v. PaineSupreme Court of Iowa · 1884