Sloan v. Coolbaugh

| Iowa | Nov 5, 1859

WoodwaRD, J.

One of the causes of demurrer was, that Sarah A. Sloan, wife of the complainant, should have been made a party; and the court so held, sustaining the assign-merit, and it is from this alone that the petitioner appeals.

We do not perceive any reason for making the wife a party to this bill. She was not a party to the note, and united in the mortgage deed probably because it included the homestead, ox it might be to release her dower. She seems to have no legal relation to the transaction other than to enable her husband to pledge the homestead. In Helfenstein & Gore v. Cave, 3 Iowa 287" court="Iowa" date_filed="1856-12-15" href="https://app.midpage.ai/document/helfenstein-v-cave-7091151?utm_source=webapp" opinion_id="7091151">3 Iowa 287, where the wife applied to be made a party, it was beld that she need not be, and ought not to be made a party.

This was the only point upon which the court sustained the demurrer, and consequently the only one on which the complainant appeals.

The demurrer was overruled upon other causes and upon which the defendant appeals. The first of these causes was that the petitioner should pay or tender the amount which he admitted to be due before he could be entitled to an injunction.

It is a principal of equity jurisprudence and practice, that a party seeking the aid of equity and the interposition of its power, to entitle him to the relief sought, must place himself in a position to demand the relief. The common maxim is, that a party who asks equity must do equity. This view of the law was taken in the case of Stringham, administrator, v. Brown et al., 7 Iowa 83, although the case is not placed expressly upon that ground. And this is the decided view of the majority of the court in the present case, and they hold that the petitioner since he admits a portion of the money to be due should have paid or tendered this sum, and should aver it before he could be entitled to an injunction.

But I am unable to divest myself of the doubts I have felt, arising not from the general principle, but from our statute relative to these summary sales and my view of its design. But it is needless to enter into these. The decision of the court in overruling the demurrer on the assignment is reversed. This objection stands before the other matters of complaint by the petitioner, and this conclusion obviates the necessity of inquiry into them.

The decree is reversed.