Case v. Hicks

76 Iowa 36 | Iowa | 1888

Robinson, J.

— I. There is some conflict in the evidence, but we think it shows that plaintiff signed the Richmond note as surety for Philetus R. Hicks. The money received thereon was used by her, but was in effect a repayment of money which was borrowed of her by Philetus. Some conversation was had between plaintiff and appellant, but it was after the latter had obtained his deed for the land; and, if statements or promises were therein made, as claimed by plaintiff,* they were without consideration, and without force to obligate appellant. The plaintiff fails to show that appellant assumed the Richmond mortgage at the time he acquired title to the land, or that he knew of its existence. The charges of fraud are not sustained. It is true that the decree in the foreclosure case was as asked by appellant; but the facts in the case gave some color to his claim that plaintiff was the principal debtor, and we do not find that such claim was fraudulently made, nor do we find any ground for concluding that appellant made any representation to plaintiff to induce her not to appear in the Richmond case. If her statements as to what he said are true, he made some statements of an intention on his part to pay the mortgage debt, but they were made long before the foreclosure proceedings were commenced, and were not of a character to justify plaintiff in relying upon them.

II. Appellant insists that the adjudication in the Richmond case is valid, and that appellee is, by this action, making a collateral attack upon it. Appellee contends that the law of res judicata has no application to this case; that she made default in the foreclosure proceedings, and is concluded by the judgment therein rendered only as to the very matters set up in the petition, and of which she had notice. It is not disputed that plaintiff had due notice of the foreclosure proceedings, and that she was in fact a party thereto, and bound by the decree so far as it was warranted by the petition of Richmond. The court then had jurisdiction of the parties affected by its decree, and of the subject-matter of the action. It was within its power, and was its duty, so far as the facts were shown and relief was asked, to settle the question of priority of liens. 2 Jones, Mortg. sec. 1445. See, also, Graham v. Railroad Co., 3 Wall. 711. If appellant’s theory of the relation of appellee to the mortgage debt had been correct, he was surety for the payment of that debt, to the extent that his mortgaged property was holden for it, and was entitled to the relief given by the decree upon showing the fact to the court. Code, sec. 3042. We do not think it was necessary for him to give notice to his co-defendants of his claim. They knew that He was a party to the action, and were chargeable with notice of whatever rights he might have which could be protected in the action, without a prayer for affirmative relief as against them. Appellee had taken no steps to have her relation to the note shown to the court. Hence she must be held to have consented that her property might be treated as that of a principal debtor. Section 3042, supra. She was made a party to the suit for the purpose of settling her liability. It was the proper time and tribunal in which to make her rights known, and have them protected. Having failed to do so, she ought not to be heard to question the decree in this action. Tredway v. Sioux City & Pac. Ry. Co., 39 Iowa, 665. So far as her claim rests upon alleged promises and fraud on the part of appellant, it is not sustained by the evidence ; and, so far as it is based upon her surety-ship, it must be held to have been adjudicated in the Richmond case ; and, until the decree in that case is set aside or modified by direct proceedings, it must be held to be conclusive as to her interests therein involved. The decree of the court below in this case is

Reversed.