High v. Brown

| Iowa | Jun 14, 1877

Notebook, J.

The proper order was made in the court below for a trial upon written evidence. It was so tried. The action, being in equity, is therefore here for trial anew, on the evidence.

i. mobtgage: sale of cMt There is no question made as to the consideration given by defendant, Brayley, for the mortgage. It is conceded in the petition that the mortgage was given to secure advanced by Brayley to Griswold. The plaintiff insists that inasmuch as he purchased the horse without any actual notice of the mortgage, Brayley should be required to exhaust the other mortgaged property before resorting to the horse in question. The court below so .ordered, when the sale of the horse was enjoined, and we think this was correct. Ve think, however, as the mortgage debt was not then all due the court could not compel Brayley to foreclose his mortgage at that time. At least no such relief was asked, nor was such order made.

The title -to all of the mortgaged property was in Brayley, subject to be divested upon payment of the debt secured by the mortgage. The injunction prohibiting the sale of the horse in question until the other property should be subjected to the payment of .the mortgage, being in full force whenGriswold escaped with all the property but the threshing machine, we are required to determine whether Brayley is liable to the plaintiff for the value of the horse, because he neglected to foreclose for such an unreasonable time as to allow, the property to be lost to both plaintiff and himself.

We think it is not sufficient to show merely that there was laches in the foreclosure. It must further be'shown that plaintiff has been injured by reason of such delay. The burden is upon plaintiff to show that if, before Griswold escaped with the property, Brayley had seized it and foreclosed, there would have been sufficient to have paid the mortgage debt, interest, and costs of foreclosure, without selling the horse in question. The evidence fails to show any such state of facts. There is no evidence whatever to show the value of the property other than the horse in question, excepting that the proceeds of the sale of the machine was $100 or $120. It is not shown how much of the mortgage debt was unpaid. Plaintiff alleges that it was all paid by the 'sale of the machine. This is denied. The only evidence upon that branch of the case shows that there was quite a large balance unpaid after the sale of the machine, some $200 and interest. Whether the other horses and the wagon included in the mortgage were sufficient in value to pay such balance we can form no opinion from the evidence. For aught that appears the horses and wagon may not have been worth $25 each.

The plaintiff testified that Griswold told him that $195was all that was due on the mortgage. It will scarcely be claimed that such statement was competent evidence in an action between these parties.

Reversed.