Barthol v. Blakin
Supreme Court of Iowa
Appeal from Winnesheik Circuit Court. Action in chancery to foreclose a mortgage given to secure certain notes made payable to one Erickson, or order. The petition, after setting out the notes and mortgage and making sufficient averments as to the non-payment of the debt, etc., alleges that the mortgage was assigned to plaintiff, who now holds and owns it, together with the notes.
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Appeal from Winnesheik Circuit Court. Action in chancery to foreclose a mortgage given to secure certain notes made payable to one Erickson, or order. The petition, after setting out the notes and mortgage and making sufficient averments as to the non-payment of the debt, etc., alleges that the mortgage was assigned to plaintiff, who now holds and owns it, together with the notes. Defendants demurred to the petition, on the ground that no copy of the assignment is set out in the petition. The demurrer was overruled. From the judgment of the court upon the demurrer defendants appeal.
1Opinion of the Court
Beck, Ch. J.
The demurrer was properly overruled. The language of the petition, avering that the mortgage was “ duly assigned to the plaintiff,” does not necessarily imply that it was transferred by writing. It may have been assigned verbally, and plaintiff’s title thereto and right to maintain the action, under such a transfer, would have been undoubted. Moore v. Lowry, 25 Iowa, 336; Creighton v. Gordon, Morris, 41; Jones v. Witter, 13 Mass. 304; Briggs v. Dorr, 19 Johns. 95; 1 Pars. on Cont. 197, and authorities cited; Rev., § 2757.
The language of the pleading above quoted will be liberally…
2Cases cited3 opinions
- Jones v. WitterMassachusetts Supreme Judicial Court · 1816
- Briggs v. DorrNew York Supreme Court · 1821
- Moore v. LowreySupreme Court of Iowa · 1868
3Cited by5 opinions
- Howe & Co. v. JonesSupreme Court of Iowa · 1881
- Seymour v. AultmanSupreme Court of Iowa · 1899
- Bank of Erin v. Houston CountyCourt of Appeals of Tennessee · 1928
- Warnock v. RichardsonSupreme Court of Iowa · 1879
- Robbins v. Klein, Lichtenstader & Co.Ohio Supreme Court · 1899