38 Iowa 73 | Iowa | 1874
This action is brought by W. A. Morrison, as the assignee of a judgment rendered in a suit at law on a note made by J. W. Morrison to Charles II. Berrybill, and as tbe assignee of a mortgage executed by said J. W. Morrison, to said Berrybill to secure tbe payment of said note. J. W. Moiv rison, tbe maker of tbe note and mortgage, and Henry N. Berry and wife, tbe purchasers of tbe mortgaged premises from the mortgagor, are made parties defendant at the suit of tbe plaintiff, and a foreclosure of tbe mortgage is prayed.
On tbe 12th day of April, 1870, tbe defendants Berry and wife filed an answer setting up tbe following defenses:
1. That after tbe rendition of judgment on tbe note which tbe mortgage was made to secure, to-wit, January, 1870,
2. That the assignments of the judgment and mortgage were made after said judgment had thus been fully paid.
3. That said assignments were made after the termination of a suit in the District Court of Johnson county, at the'January term, -1870, wherein J. TV. Morrison was plaiutiff, and these' defendants were defendants, in which suit the whole matter involved in this suit was in issue, and was determined in favor of the defendants.
The record shows • that on the 12th day of July, 1870, on-motion of plaintiff the action was dismissed as to Berry and wife, and a judgment of foreclosure rendered against J. TV. Morrison, the mortgagor; also that, on the same day, Berry and, wife appeared and obtained,leave to file a cross-bill, and on.the next day they filed an additional answer and a cross-bill making the plaintiff, the defendant, J. TV. Morrison and M. J. Morseman parties defendant. The facts set up in the answer- and in the cross-bill are, in substance, that in February, 1868, Berry purchased of J. TV.. Morrison, who conveyed to Berry with warranty, a part of out lot No. 4, in Iowa City, for the consideration of $900, then paid; that at that time there was oh said premises a mortgage for $800, made by said Morrison to Charles H. Berryhill, which was not then recorded, and of ■which Berry had no actual notice; that afterwards Berryhill elected to 'sue on the note which said mortgage was given to secure, and, without reference to the mortgage, obtained a judgment on the note against J. TV. Morrison, in the'Circuit Court of that county for $898.83 with costs; that a stay of execution on said judgment for one year was taken, by M. J, Morseman becoming surety therefor, who it is alleged is indemnified against liability thereon by said J. TV. Morrison; -that said judgment was and is a lien on real property in John7 son county not otherwise encumbered, and many times greater -than said judgment, to which the plaintiff can resort. It is further alleged that on the 13th day of September, 1869, said James TV.. Morrison brought an action in. the District Court
It is 'prayed that the mortgage be not enforced against the premises mortgaged; that it be adjudged that Berryhill waived the mortgage, and that neither he nor his assignee, the plaintiff, be now pez-mitted to foz-eclose the same; that the plaintiff be required to proceed first against the property of James W. Morrison, and that of Morseman, the surety for the stay of execution now expired; that in case this cannot be allowed, Berry be allowed to come in and pay the plaintiff the sum paid by plaintiff in the purchase of the mortage and judgment, and be subz’ogated to his lights, etc., and that
The answers of the respondents to the cross-bill are in effect denials of the material averments of the cross-bill; and that prior to the filing thereof Berry and wife had absolutely conveyed the mortgaged property, and had at the time of filing said cross-bill, no right or interest in said property, or any cause of action against J. ~W. Morrison.
The cause was reached for trial on the 29th day of December, 1871, the evidence of both parties adduced, and the cause submitted to the court, whereupon the court, on its own motion, made an order requiring the parties to advise the court of the value of the property in question by proper testimony to be taken to that end, and the cause was continued for that purpose. Berry and wife excepted to this order. After the taking of this testimony the canse was on the 3d day of April, 1872, finally submitted to the court, and a decree rendered, foreclosing the mortgage as prayed, and dismissing the cross-bill of Berry and wife.
I. It is .insisted that there can be no foreclosure of the mortgage for the reason that Berryhill “elected definitively to pursue the note to general judgment intentionally, by waiving his right to enforce the mortgage,” as shown by his testimony in the case. Berryhill’s testimony on this point is as follows: “I sued on the note alone; it was secured by mortgage; I preferred to sue on the note alone.”
Is there anything in the testimony of Berryliill, showing that he intended to abandon the lien of his mortgage on the property described therein and rely solely upoti a general execution against the property of the judgment 'debtor? We think clearly not. Fie says he sued on the note alone. Fie preferred to do so. This preference may have been because he could obtain judgment sooner by thus suing, for in an action to foreclose, the defendant would have been entitled to sixty days after service to answer, and this might have made three months difference in the time of obtaining judgment, and such difference in time may have been the reason why Berryliill preferred to sue on the note. There is nothing to show that he had any intention to abandon or relinquish the lien of his judgment by suing alone on the note.
It is laid down as a general rule in Sugden on Yendors 608, deducible from the authorities, “that where the first covenant is general, a subsequent limited covenant will not restrain the generality of the preceding covenant, unless an express intention to do so appear, or the covenants be inconsistent.”
In the case before us it is plain that the exception contained in .the covenant of warranty was intended to restrain or limit the preceding general covenant against incumbrances. It is also quite clear that this exception or limitation is utterly inconsistent with such general covenant. Being so, the general covenant will be limited by the special exception in favor of the incumbrance mentioned in the deed. See in support of this conclusion, Bender v. Fromberger, 4 Dall., (Pa.) 440; Attorney General v. Purmort, 5 Paige 620; Smith
III. It is further insisted that the plaintiff became the assignee of the mortgage and the judgment rendered on the note, with notice of the action of J. W. Morrison against Berry, in which action judgment was rendered for Berry, and that he, (the plaintiff,) is bound by that adjudication. That action was brought by James W. Morrison to recover of Berry the amount of the Berryliill mortgage, which, it was alleged, Berry had assumed and agreed to pay as part of the purchase money of the lot conveyed by Morrison to Berry.
Affirmed.