Ross v. Kennison

38 Iowa 396 | Iowa | 1874

Beck, J.

— I. The question presented for our decision is this: Does the petition set out sufficient ground for the recovery of a personal judgment against Taggart, at the suit of plaintiff?

^BBo^mort gage: liability m a promise to pay pote It has been ruled by this court that the holder of a note secure<^ mortgage, may recover a personal judgment against the grantee of the mortgagor upon ° . ° nor his promise or covenant to pay the note as a part of the consideration of the purchase of the land. Thompson v. Bertram, 14 Iowa, 476; Scott, Adm’r, v. Gill, 19 Iowa, 187; Moses v. Clerk, etc., 12 Iowa, 140; Corbett v. Waterman, 11 Iowa, 87. This rule is based upon the principle that when one makes a promise to another for the benefit of a third person, that third person may recover upon the ju’omise, whether it be verbal or in writing. Scott, Adm'r, v. Gill, supra; Johnson v. Collins, 14 Iowa, 63.

II. The petition alleges that Taggart’s promise was to pay the note in question, and that it has been transferred to plaintiff. The assignee of the note may maintain an action upon the promise. Thompson v. Bertram, supra. The petition shows a cause of action against Taggart, at the suit of plaintiff.

2. pleading • petition. II. It is urged by appellee that the petition should have alleged the ability and readiness of the original mortgagor 0011vey the land, and because it does not, it is defective. The promise of Taggart is the foundation of plaintiff’s claim. Want of ability of the mortgagor to convey, would be a matter of defense to the action against Taggart, and should have been pleaded by him. Plaintiff was not required to deny in his petition this or any other defense that may be held by Taggart. . The objection is not well taken.

It is our opinion that Taggart’s demurrer was improperly sustained.

Reversed.