46 Iowa 556 | Iowa | 1877
The case was submitted to the court upon an agreed statement of facts which, so far as the rights of the parties appealing are involved therein, are as follows:
“ 1.- That in July, 1869, the plaintiff, George W. Nash, and defendant, W. A. Loweiy, executed a joint note — with other notes to other parties — to one Frederick Zugg; that Nash was in point of fact surety only.
“ 2. That Nash, at the same date, took the mortgage and note in question as indemnity against the payment of said note from Lowery on certain real estate; that the mortgage was for the sum of $2,350, the note to Zugg was for the sum of $700 or $800.
“ 3. That Nash satisfied said mortgage on all the real estate mentioned, except lot 12, block 19, stated in the petition, on the 13th day of July, 1870.
“4. That on the 13th day of July, A. D. 1870, judgment was rendered on the note of Zugg against both Lowery and Nash for the sum of $700 or $800.
“ 5. That subsequently execution was issued against both Lowery and Nash and all of Lowery’s property levied upon and sold; that the last piece of Lowery’s property sold was lot 12, block 19, in Moulton, Iowa, and bid in by A. J. Morrison and A. J. Morrison & Co., grantors; that the property lacked $167.50 of bringing the amount of the judgment against Nash and Lowery, which was subsequently made, to-wit: December 9th, 1873, by execution, out of the property of Nash, there being no property of Lowery’s.
“6. That said note by its terms bears no rate of interest expressed.
“7. That from the time of rendition of judgment to the time of the payment by Nash of the $167.50, the costs accruing by levy and advertising and penalty of tax sales which •was. deducted from the bid was more than the $167.15 paid by Nash.
“ 8. That Nash directed the sheriff to levy on lot 12, blocik
“ 9. That these defendants’ grantors knew that the note and mortgage in question was held by plaintiff, Nash, as an indemnity to secure him as surety for the defendant Lowery, on the said Zugg note, being the note and judgment rendered thereon, that is referred to in the pleadings in this case.
“10. It is agreed that the plain tiff, Nash, as surety on the said Zugg note was compelled to pay on said debt $167.15, and which sum was paid December 9th, 1873.”
It is very plain that the property cannot be subjected to sale upon the mortgage. The object of that conveyance was to secure it as a fund for the protection of Nash, against the claim for which he was surety. Nash, by directing its sale upon the execution, chose that as the manner of devoting the property for his own protection. The parties thereby effected the very purpose of the mortgage. The Morrisons purchased the property with a knowledge of the fact that it was sold for such purpose. The sale was procured by Nash. He is estopped to set up a claim to subject it again to his protection.
But it is insisted that as the law requires the property sold upon execution to be appraised, and upon such an appraise
After this ruling Exline, being the assignee of Nash’s claim, was substituted as plaintiff'.
III. Plaintiffs insist that as we have not before us all of the evidence, and the court made no finding of facts, its decision cannot be reviewed upon this appeal. It is true that the record presents no testimony and all the facts found by the court are not stated. But the parties submitted the cause upon Certain
Reversed.