Claflin v. Reese

54 Iowa 544 | Iowa | 1880

Beck, J.

I. Tbe note secured by tbe mortgage is payable to defendant Sberman, wbo indorsed it in blank and executed an assignment and guaranty upon tbe mortgage in these words: “ For value received I hereby assign and transfer tbe within mortgage to Elias 1L Clañin, and guarantee the payment thereof, principal and interest.” By the terms of the note it is not yet due, but tbe mortgage contains a stipulation that in case tbe mortgagors should- fail to pay the taxes upon tbe land 'conveyed tbe whole mortgage debt should become due. Tbe petition alleges default in payment of tbe taxes.

The defendant Sberman answering admitted tbe execution of the note and mortgage, and that plaintiff is the owner thereof, bat as to whether anything is due thereon, declared that he had not sufficient information to form a belief, and, therefore, denied that any sum is due upon the mortgage. In a second count he alleges that he is released and discharged as indorser of the note, for the reason that he had no notice of “ the presentation and non-payment of the note, interest or taxes.” A demurrer to the second count of the answer was sustained.

1. moetgage: fiaÉiiity°oí.' II. Counsel insist that defendant being an indorser is not liable except upon notice of presentation and dishonor of the note. But defendant is a guarantor for the payment of the mortgage, and is liable as such without notice unless he shows prejudice resulting to him by reason of the want of notice. Rodabaugh v. Pitkin, 46 Iowa, 544. The debt became due by reason of the stipulation in the mortgage. By the terms of the note it was not due. Defendant is not liable as indorser of the note, but lie is liable as guarantor of the mortgage, and to enforce this liability judgment was rendered against him. 'It is very plain that he cannot defeat recovery upon the ground that he is not liable upon the indorsement.

Counsel argue that as the note became due under the mortgage, defendant’s liability rests thereon. This is a mistake as to the fact. The stipulation of the mortgage is not that the note shall become due upon failure to pay taxes, "but that the money, the debt secured, shall fall due. The debt fell due under the terms of the mortgage.

2. treading: kumviedgo1 andinioriraturn. III. The defendant asked for a jury, which was denied him; of this he complains. The ruling is right, for the reason that defendant’s answer after the demurrer was sustained contained no allegation sufficient to . . rr,. „ . n ,. raise a.i issue. Hie iirst count states that defendant had no information sufficient to form a belief as to whether anything is due to plaintiff, and therefore denies that any sum is due. This is not sufficient. He should have denied that he possessed any knowledge or information sufficient to form a belief. Code, § 2655,' p. 2; Manny v. French, 23 Iowa, 250.

IT. Counsel further insist that the judgment is for a sum in excess of the amount due on the mortgage. The note provides for interest from date, and the mortgage from maturity, therefore counsel claim the judgment is excessive, for the reason that interest is calculated from the date of the note and mortgage. But the mortgage provides that payments of interest shall be made according to “ the tenor and effect of the note.” It clearly appears that the contract embodied in the note and mortgage requires the payment of interest from the date of the note and mortgage.

No other questions are presented in the case. The decree of the District Court is

Aeeirmed.