14 Iowa 88 | Iowa | 1862
The counsel for Bindley, a junior incumbrancer of the mortgaged premises, and a party defendant in the foreclosure proceeding, filed an answer in this court, under the provisions of § 8522 of the Revision, denying the right of the state to, prosecute this appeal, and asking that the judgment of the court below be sustained, and the appeal dismissed.
There are several questions of a preliminary character raised by the counsel for appellee, which perhaps, would have determined the cause in favor of the ruling of the court below. But, as the main question involved, is of great practical importance, and one upon which the rulings of the district court are not uniform, we propose to consider but this one point, as the others become unimportant, from the ruling we make in the cause.
The question to be determined is, whether the state, under the law in relation to usury, is in anywise entitled to the benefit of the mortgage security.
The provision of the statute is that the usury, when made to appear in a suit on the contract, shall work a forfeiture of ten per cent per annum upon the amount of such contract to the school fund of the county, &c., and the plaintiff shall have judgment for the principal sum, without either interest or costs. The court, in which such suit is prosecuted, shall render judgment for the amount of interest forfeited as aforesaid, against the defendant, in favor of the state, &c. This is the only provision of the statute that authorizes the rendition of a judgment in favor of the
We are unable to see. how the court can exercise any greater power than is conferred by the statute. The law authorizes the rendition of a judgment for the penalty against the borrower, but this judgment does not create a lien, only from the date of its rendition.
The law expressly gives to the mortgagee a lien from the.date of the mortgage, and when judgment is obtained upon the debt secured, the lien relates back to the date of the mortgage. The judgment in favor of the state is an incident to the plea of usury and the state must take the judgment for the penalty, with the lien it creates, from the date of its rendition.
Affirmed.