183 Iowa 1389 | Iowa | 1918
Subsequently, appellant sold the land to a purchaser who failed to pay the note on March 1,1915, whereupon suit was brought upon the note, and a decree of foreclosure entered. Appellant was joined as defendant in the suit, and judgment was demanded against him on the contract for the full amount of the mortgage indebtedness. The premises were sold under special execution for $2,500. General execution was then issued and levied upon certain real estate belonging to Simons; but, before sale, the execution was re turned, and an agreement entered .into between plaintiff and Simons, releasing the latter from further liability on the judgment. Appellant appeared in the foreclosure suit and filed answer, reciting the history of the transaction, and, among other defenses, alleged: First, that the contract imposed upon him the liability of a surety only, and that, by the settlement with Simons, the principal debtor, he was released from liability on the contract; and, second, that the contract was executed without consideration. As these are the principal defenses relied upon, and the only matters discussed in argument, we will not refer to other issues tendered.
I. Counsel for appellant does not seriously contend that the note did not become due, according to its terms, on
It therefore follows that the indebtedness, payment of which was secured by the mortgage, fell due on November
It may be assumed that appellant found it inconvenient, or undesirable, to pay the indebtedness, or to contest the suit to foreclose the mortgage, and that an extension of time until March 3., 3915, was beneficial to him. It is obvious that the contract was executed for the purpose of securing this extension, and perhaps also to obtain the execution of a quitclaim deed, correcting the description in his deed from Megow. The conveyance to him was subject to the mortgage for the payment of which the land was the primary fund. By the terms of the contract, he assumed and agreed to pay the same in consideration of an extension of time therefor until March 3, 3915. Plaintiffs agreed to forbear the foreclosure of the mortgage, and to extend the time as provided in the contract. The most that appellant can claim is that there was a fair controversy as to the right of the holder to
As illustrating what constitutes a good consideration for a contract, see the folloAving: Moench v. Hower, 137 Iowa 621; Adams v. Morton, 37 Iowa 255; Lucy v. Price, 39 Iowa 26; Burke v. Dillin, 92 Iowa 557; Mackin v. Dwyer, 205 Mass. 472 (91 N. E. 893); Snohomish R. B. Co. v. Great Northern R. Co. 57 Wash. 693 (107 Pac. 848); Sutton v. Dudley, 193 Pa. 194 (44 Atl. 438); Nicholson v. Neary, 77 Wash. 294 (137 Pac. 492).
Probably, appellant, at the time, believed that the value of the land justified the assumption of the indebtedness. Some evidence was offered to the effect that he desired to plat the same into town lots, for the purpose of sale. The evidence, however, was conflicting upon this point. In any event, he must have desired to protect the land from foreclosure sale, and to "avoid litigation. It is evident that the contract is supported by a good consideration. ■ :
Other issues tendered by appellant are not argued by counsel. We reach the conclusion, therefore, that the decree and judgment of the lower court should be and is— Affirmed.