73 Iowa 570 | Iowa | 1887
This case is wrongly entitled. It should be Stearns v. Hollenbeck et al. It is provided by statute that causes in this court shall be entitled as in the court below, and such has been the uniform practice for years. In so disregarding the statute counsel have exhibited a singular want of knowledge, or shown great carelessness in the preparation of the case. We indulge the hope that it will not be repeated.
The undisputed facts are that one Severance executed a mortgage on real estate which he sold to Hollenbeck, and the latter agreed to pay such mortgage, which belonged to one Hyde. The money due on the mortgage was payable in Connecticut. A short time prior to the time the mortgage became due, Hollenbeck applied to Stearns to procure for him a loan on the same real estate, for the purpose of paying off the Hyde mortgage, and other purposes. Hollenbeck made and signed an application directed to the Lombard Investment Company for such loan, and the same was forwarded to such company by Stearns. The loan was made, to secure which Hollenbeck executed a mortgage to said company, upon whom Hollenbeck drew a draft in favor of Stearns for the proceeds of the loan, and such amount was received by Stearns, and a sufficient sum of money was forwarded by him to one Creighton, at Des Moines, to pay the Hyde mortgage, and it was so forwarded for the purpose. The evidence clearly shows that Creighton failed to so apply the money, and that he was not authorized by Hyde to receive it. Stearns afterwards purchased the mortgage of Hyde, and paid full value for it, and this action is brought to foreclose such mortgage.
The only disputed question is one of fact, and that is,
Affirmed.