Lewis v. Denton
Supreme Court of Iowa
Appeal from Johnson District Court. Bill to foreclose a mortgage executed by Robert Denton to secure the payment of a certain promissory note payable to Miles K. Lewis, by whom it was assigned to plaintiff. The mortgaged premises, having been, subsequently to the execution of the mortgage, sold to Abby Denton, she was made a party defendant.
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Appeal from Johnson District Court. Bill to foreclose a mortgage executed by Robert Denton to secure the payment of a certain promissory note payable to Miles K. Lewis, by whom it was assigned to plaintiff. The mortgaged premises, having been, subsequently to the execution of the mortgage, sold to Abby Denton, she was made a party defendant. The defendant, Robert Denton, answered, alleging that the assignment to plaintiff was without consideration, and for the purpose of avoiding a set-off against the note, if it remained in the hands of the original payee; and claimed of Miles Lewis as “the…
1Opinion of the CourtWright, J.
A set-off is not a defense to an action. It is the defendant’s action against plaintiff, and plaintiff’s right to recover upon his cause of action is in no manner affected by such set-off.
If, therefore, an action is brought upon a note, duly assigned, in the name of the assignee, the defendant cannot, while the action thus stands, ask to litigate a set-off against the assignor, by simply averring in his pleadings that such assignor is the real party in interest. He is not a party to the record, and no judgment could be taken against him on such set-off, and substantially defendant asks such…
2Cited by2 opinions
- Jorge Construction Co. v. Weigel Excavating & Grading Co.Supreme Court of Iowa · 1984
- Way v. LambSupreme Court of Iowa · 1863