133 Iowa 391 | Iowa | 1906
In 1899 the defendants Porter, who are husband and wife, negotiated with plaintiff for the purchase of a tract of land, and, in order that the Porters might pay $2,000 of the consideration in cash, it was arranged that a deed should be made to them by the plaintiff, and that they should give a mortgage to another party for $2,200, and their note to plaintiff for $2,500, the balance of the purchase price, with the defendants J. N. and N. B. Richey as sureties. The Richeys, who are relatives of Mrs. Porter, consented to become sureties on this note, as they claim, only on condition that a second mortgage on the property should be given to them, and that plaintiff should accept an assignment of this mortgage in full discharge of their obligation. This action is to recover an installment of interest due on the $2,500 note, the principal of which was not yet due at the time the action was brought, and the defense on the part of the Richeys is that they had been released by the assignment to the plaintiff of their second mortgage, under an arrangement with the plaintiff, entered into, as already indicated, at the time the note was given. Mrs. Porter interposes the defense of a prior adjudication.
Taking the whole record together, there is no evidence that any personal judgment against Mrs. Porter was ever entered, nor is there any recital in the decree nor showing otherwise that personal service was had on Mrs. Porter. ■ It must be borne in, mind that in this foreclosure proceeding plaintiff, Hunter, was suing as assignee of the Richeys, who were liable only as sureties. Had there been no assignment, the Richeys could have foreclosed as against Mrs. Porter only for such portion of the indebtedness as they might have been compelled to pay. The principal and interest specified in the note were not yet due, and clearly the Richeys could not on the payment of taxes foreclose for the entire amount of the note and interest, which they had not yet been called upon ,to pay. Under the record we are clear that the foreclosure by Hunter as assignee of the Richeys was in effect a proceeding in rem only for default in paying the sum of $26.61, and that the balance of the sum realized on execution was applied as a credit on the note which was not yet due. But whether or not Hunter as assignee of the Richeys might declare the principal of the note to be due on account of the default in the payment of taxes, in the absence of evidence that Mrs. Porter was a party to this foreclosure proceeding, either by personal service or by appearance, she cannot rely upon the foreclosure as relieving her from further personal liability. We need not, therefore, discuss the question whether, if she had been made a party, the foreclosure without the rendition of personal judgment against her would estop the plaintiff from subsequent proceedings to secure such personal judgment. The trial court gave the Porters credit on the note for the amount realized in the foreclosure proceeding, and rendered judgment against Mrs. Porter for an
The judgment of the trial court on tbe pleadings and evidence as against Mrs. Porter, and on tbe verdict of tbe jury as against tbe defendants Richey, is therefore affirmed.