46 Iowa 259 | Iowa | 1877
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.
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
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.