32 Iowa 27 | Iowa | 1871
The first paragraph of the answer contained a general denial of the averments of the petition. The second, third, fourth, fifth and sixth paragraphs contained new matter, set up as a defense, and taken together we are of opinion did state a good defense to the cause of action stated in the petition. The action was not brought against the maker of the note and mortgage. The mortgagor was not made a defendant at all. The action was brought against defendant alone as grantee of the mortgagor, and a judgment is asked against him for the amount due on the note, as well as a foreclosure of the mortgage ; and this demand for judgment is predicated on the alleged facts that the defendant purchased the mortgaged premises “subject to said mortgage, and that the defendant, in his deed from Pierce, agreed to pay off” the same. The paragraphs of the answer above referred to confess these averments in the petition, but allege that he paid said Pierce $750 of the purchase-money, upon the representation of Pierce that he had a good title to the premises; that said representation was false; that Pierce never had any title to the property; that defendant, relying on such representation, paid the said $750 and agreed to pay the amount of plaintiff’s mortgage for $250, as the full consideration for said property; that said promise was thus obtained by the fraud of" said Pierce and that the consideration wholly failed. Now, while this was no defense to the prayer for a foreclosure of the mortgage against the property, it was a defense against the claim for a personal judgment against Hunt, on his promise to pay the debt of Pierce secured by the mortgage.
If Pierce had paid the note and brought his action against Hunt on this promise, it is clear that the allegations of this answer would have constituted a good defense to
Reversed.