Blank v. Michael, 226 N.W. 12

Blank v. Michael

226 N.W. 12 | Iowa | 1928

Lead Opinion

The mortgagors take the position that by their conveyance of the mortgaged premises the grantee assumed to pay the mortgage when due; that mortgagee, with knowledge of such agreement, extended the time of payment of the mortgage and 1. MORTGAGES: note secured thereby without mortgagors' transfer of knowledge or consent, and thereby mortgagors property: were released. This question is in this assumption jurisdiction stare decisis, adverse to of debt by mortgagors' contention. Corbett v. Waterman, 11 vendee: Iowa 86; Massie v. Mann, 17 Iowa 131; James v. extension Day, 37 Iowa 164; Robertson v. Stuhlmiller, 93 of time: Iowa 326; Iowa Loan Trust Co. v. Haller, 119 effect. Iowa 645; Herbold v. Sheley, ___ Iowa ___ (224 N.W. 781); Iowa Title L. Co. v. Clark Bros., ___ Iowa ___ (224 N.W. 774). The mortgagors further contend that 2. ALTERATION the extension agreement operated as a material OF alteration of the note and mortgage sued upon, INSTRUMENTS: and therefore invalidated them. This contention nature of is untenable. Cresco Union Sav. Bank v. Terry change: Terry, 202 Iowa 778. The mortgagors further urge extension that the extension agreement operated as a of time of novation. The mortgagors were not parties to the payment. extension agreement. As there was no express agreement to extinguish their obligation and substitute a new one, or to release them, and as in this jurisdiction such an agreement is not implied, there was no novation. 3. NOVATION: Richardson v. Short, 201 Iowa 561; Shult v. requisites: Doyle, 200 Iowa 1; Davis v. Hardy, 76 Ind. 272, affirmative 276; 46 Corpus Juris 600 et seq.; Hopkins v. showing Jordan, 201 Ala. 184 (77 So. 710); Fish v. required. Glover, 154 Ill. 86 (39 N.E. 1081). CompareNelson v. Hudson, 221 Mo. App. 211 (299 S.W. 1111); Callaham v.Ridgeway, 138 S.C. 10 (135 S.E. 646). — Affirmed.

ALBERT, C.J., and EVANS, STEVENS, FAVILLE, and WAGNER, JJ., concur.

De GRAFF, J., dissents.

Dissenting Opinion

As a basis of my dissent, I urge *404 the reasons stated in a dissent filed in Iowa Title L. Co. v.Clark Bros., ___ Iowa ___ (224 N.W. 774), cited in the majority opinion herein. The facts in the instant case are quite analogous to the facts in the Iowa Title L. Co. case, supra.