Fox v. Gray

105 Iowa 433 | Iowa | 1898

Waterman, J.

1 — Defendants move to strike appel-lee’s additional abstract from the files and tax the cost thereof against him. This motion will be sustained, to the extent of taxing the costs of this abstract to the appellee. It presents only the acknowledgment of the mortgage, about which there was no question, and which was therefore wholly unnecessary.

II. Appellee’s denial of the correctness of appellant’s abstract, and his objections to the assignments of error, are without merit. This brings us to the real issue involved.

2 III. The claim of defendants is that by the terms of the note, the interest was not to be paid annually, but that they had the option to so pay it if they chose; if they did not so elect, the interest was to become principal, and could only be collected when that fell due. They rely for support in this contention upon Wood v. Whisler, 67 Iowa, 676. In that case, however, it is said, “Neither the note nor mortgage provides for the payment of interest annually.” This we regard as an. important distinction, for in the case at bar both the mortgage and note provide that the interest shall be “payable annually.” We think this case is ruled by that of Carter v. Carter, 76 Iowa, 474.

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4 IV. But it is insisted by appellants that the note does not provide that default in the payment of interest shall make the whole debt due and collectible, and that the provisions of the mortgage cannot be considered in this connection. The reason given for this contention is that the mortgage was not executed contemporaneously with the note, and there was no consideration for it, so far as it attempts to change the original contract. There is no foundation for this position. The mortgage was made in pursuance of a written agreement to do so, which was executed when the note was given. It was as much a part of the original transaction as though made at the same time. It was voluntarily executed by defendants., and was .accepted and acted upon by plaintiff. We do not think defendants now are in any situation to claim that they are not bound by its terms. But it seems there was a valuable and independent consideration for the mortgage, if it were needed. It appears! by the written agreement made at the time of executing the note that plaintiff was the owner of a certain judgment and note against one Daniels, which he was to transfer to defendants as a part consideration for the note in suit, and that he was to retain these in his own name and possession until the mortgage was executed, and then •deliver them to defendants. Defendants set up these facts. They allege performance of this agreement on their part, and they do not deny that plaintiff performed it on his part. The assignment of the judgment and the transfer of the note would surely be a sufficient consideration.

5 V. A stipulation in the mortgage, alone, that a failure to. pay interest when due shall cause the whole debt to become due, is sufficient. Smalley v. Ranken, 85 Iowa, 612; Hawes v. Insurance Co (Mich.) 67 N. W. Rep. 329.

We discover no. error in the action of the trial court, and its judgment is affirmed.