20 Iowa 388 | Iowa | 1866
The second ground of demurrer is, that “the plaintiff is estopped by the execution of the mortgage set out in his petition, from denying that such mortgage was. given to
He admits the giving of the note, and the mortgage to secure it, but he says the consideration of the note was not six hundred dollars, and that it was only for the indebtedness evidenced by the two other notes named. The giving of the mortgage did not, in any manner, affect the right of the defendant to contest the amount due upon the note. To construe it as an estoppel is as clearly against law, as it is against reason and justice.
As the judgment must be reversed and cause remanded when there will be a trial upon its merits, it becomes unnecessary to determine whether there was error in proceeding to a trial of the cause upon the motion as set forth in the record.
Reversed.