Early v. Burt
68 Iowa 716
Iowa
1886
Check Treatment
Heed, J.

of0partue6r^se otfter“annec tó pay debt.

2. PLEADING: material allegations admitted : denial of others immaterial: judgment on pleadings It has not been claimed in this court that either Satterlee or the firm of Burt & Satterlee were discharged from liability on the account in suit by the agreement pleaded in the answer. The undertaking of Burt to pay the debt did not constitute a consideration for the promise of plaintiff to release the firm and Satterlee from liability therefor, for the reason that Burt, as a member of the firm, was already bound for the amount. His undertaking was'simply a promise to pay a debt for which he was already liable. Counsel for defendants contends, however, that the denial contained in the answer puts in issue some of the material allegations of the petition, and hence plaintiff was not entitled to judgment on the pleadings. But we think the answer admits every fact material to plaintiff’s right of recovery. It admits the purchase of the material by the partnership, and that it was used in the erection of the building described in the petition. It also admits that the material was of the value stated in the account, and that the debt had not been paid, and that the affidavit and statement necessary for the preservation of the mechanic’s lien had been filed; and it alleges that the lot on which the *719building was erected was tbe property of the defendant Burt. Under these admissions and allegations the plaintiif was not required to prove any fact in order to establish_ his right to judgment, and no fact was pleaded which avoided his right of recovery. The ruling of the court on the demurrer and motion for judgment was therefore clearly right.

s mechanic’s ure:orm°ofs" sepfratesaie of building. II. "We think, however, that the circuit court erred in foreclosing the lien on the building alone, and in ordering its sa,le> and ^11 empowering the purchaser to remove ^ from the lot. The allegation in the answer that the lot upon which the building was erected wag ^ie pr0perty 0f must be taken as true. The mechanic’s lien therefore attached to the lot, as well as the building, (see sections 3 and 4, Mechanic’s Lien Law; chapter 8, tit. 14, McClain’s Code,) and it was the owner’s right to have the whole property sold for the satisfaction of the debt. By the sale of the building alone, and its removal from the premises, as provided in the judgment, his right to redeem from the sale would be defeated. When there is a prior lien upon the land, the court is empowered, by subdivision 4 of section 9 of the act, to order the sale of the building alone for the satisfaction of the debt secured by the mechanic’s lien, and to provide for its removal from the premises. But it does not appear in the present case that there was such prior lien, and, in the absence of a showing of that fact, the judgment should have established the lien upon the lot as well as on the building, and provided for the sale of the real estate in satisfaction of the debt.

4. PRACTICE courtprequitapeaifrom ap' judgment on pleadings: assignment of error. There is no assignment of error which raises the question as to the correctness of the judgment entered by the circuit court. But we do not think such assignment is necessary. The cause is an equitable action, and the appeal is from the judgment rendered by the ... , m. • ■, ° , , . J circuit court, lhe judgment was entered on the ... . . admissions and allegations of the pleadings, and the cause is here triable do novo on those allegations and ad*720missions. The cause is not within the rule established in Powers v. O'Brien Co., 54 Iowa, 501, that, when a party in an equitable acuion stands upon the ruling on a motion or demurrer, in order to have a review of the ruling in this court, exceptions must be taken, and error assigned thereon.

The judgment of the circuit court will be modified in the respect herein indicated. The cause will be remanded to the circuit court for that purpose, or, at plaintiff’s election,'final judgment will be entered here.

Modified and Affirmed.