4 Iowa 434 | Iowa | 1857
The first assignment of error, is upon the ruling of the District Court, excluding from the jury the written instrument executed by Yance to Roe, on the ground that it was not an undertaking on the part of Yance, -to give to Roe a lien on the land for the payment of the money due on the note, but only for such money, labor and materials as should be furnished by him, to build the mill, subse
The second assignment of error, is upon the refusal of the court, to suffer evidence to be introduced, to show that the instrument of writing was intended by the parties to cover the amount due on the note, as well as future advances to be made by Roe. Ás we are of opinion that the court erred in its construction of the instrument- of writing, it will not, be necessary to notice the question raised by the second assignment of error, further than to say, that, as by our construction of the instrument, it expressly extends to any •advances previously made by Roe, to Brewer, for building the mill, the plaintiff need not prove aliunde, that such was the'intention of the parties.
We next inquire, whether, by the assignment of the note and mortgage of Brewer to plaintiffs, they acquired any fight, under the agreement of Vance, dated May 2d, 1850j to a decree, in this suit, against Vance, postponing any claim or lien he might hold against Brewer or the land, to the claim or lien held by plaintiffs. In other words, is their lien upon the land prior to that of Vance, by virtue of the assignment of the latter with Roe ? It does not very distinctly appear what interest in or claim upon the land, was retained by Vance after his sale to Brewer. By the answer
But -what lien is it, that Roe is “ to hold Tf Why is the consent of Yance necessary to the consummation of any lien-that Brewer may wish to give to Roe on- the land ? The meaning evidently is, that Yance consents that Roe shall hold alien upon the premises, under the-mortgage of Brewer, prior to, and better than that- of Yance, under his deed of trust. Any other construction would take from the language of the agreement, all its meaning, and render it & nullity. The objection of the want of consideration for the agreement of Yance, we pass by, with the remark, that if it were necessary that such consideration should be shown, it may be found in the fact, that the means furnished by Roe were expended in erecting the mill, and in other improvements, upon the land, to which-the defendant’s lien attached', enhancing- its value, and thereby increasing his1 security. And this- same land was afterwards sold, and the title to it acquired by defendant, under the deed of trust given to secure- to- him the payment of his $800; the unpaid balance of the purchase money — whereby he has got back his; land, with all the improvements put upon it by Brewer. The fact that these improvements were- made, and this enhanced val-ue given to the land, with- the money and means furnished by Roe, is surely a sufficient reason and consideration-for the agreement of Yance, to give priority to the; lien of Roe’s mortgage.
We next inquire as- to the effect of the assignment of th© note to the plaintiffs, and whether such assignment carried! with it, as a necessary incident, a lien upo-n the land, superior to that- of Yance, and such as re-ndbred Yance’s interest in the land, liable to foreclosure and sale, to satisfy the debt. It is a settled doctrine in equity, that the assignment of a promissory note, secured by mortgage, carries the mortgage with it; and tl^e assignee may maintain- an action upon it in
Whether the assignment carried with it, also, the right which Roe obtained, by the agreement of Yance, to the prior lien on the land, is a more difficult question. This agreement was not transferred to plaintiffs by indorsement. It is in their possession, however, and it is assumed that it came there lawfully, at the time of the assignment of the note and mortgage by Roe. By the assignment of the debt, the assignee is entitled to use all the remedies, the assignor might have used, to enforce the lien of the mortgage against the debtor. Does his right extend further and may he enforce a lien which the assignor held against another person? Although the agreement executed by Yance, is not assigned by Roe, there seems to have been an obvious intention on his part, to transfer to the plaintiffs, the note he held against Brewer, with all its qualities and incidents, and to clothe them with all the rights to collect it, and to enforce all the liens given to secure its payment, that he possessed himself. The priority accorded to Roe’s mortgage, by the agreement of Yance, was in the nature of an additional security acquired by him, which continued an incident of the debt, after it passed from his hands by assignment. Yance did not become surety for Brewer, nor did he guaranty the payment of his note to Roe. Holding a deed of trust upon the land, he does, however, agree to waive his lien, and postpone its admitted priority in favor of Roe.
We do not see why this agreement of Yance, should not be held, upon the well established principles of equity, to impart a quality to the debt which passed to plaintiffs by the assignment, and which entitles them, in this suit, to a decree postponing the lien of Yance to theirs, and subjecting his interest in the land, so far as the same may be necessary to the payment of their claim against Brewer. We have not been cited by counsel, to any other authority to this question,- nor in the consideration we have given to the cause, have we met with any that can be deemed directly
Upon principle and authority, then, we are of opinion that the plaintiffs are entitled to the relief prayed for against Vance. And the judgment of the District Court will be reversed, and the cause remanded, with directions' to that court to award a new trial upon the issue joined with Vance, and for other proceedings not inconsistent with this opinion.
Judgment reversed.