41 Iowa 465 | Iowa | 1875
There was conflicting evidence given to the jury as to the agreement between the parties upon the execution of the small note to plaintiff. There was evidence tending to prove, on the one hand, that it was understood the debt of Rice, to that extent, was discharged and paid and the amount should be credited on the larger note and the mortgage; while, on the other hand, there was parol evidence tending to establish that the giving of the note was not to be regarded as payment
“3. If the jury find that the new note was to operate partly as a release or discharge of the mortgage, or was to operate as a credit upon the note secured by the mortgage, independent entirely of the mortgage, then you must find for the defendant. But if the jury find that the new note of $308.35 was not to be a credit until it was paid, and that it was not to operate as a release or the discharge of the mortgage lien, and that it was expressly agreed it should not, then there would be no release of the mortgage, and you must find for the plaintiff.”
“ 5. The giving of a new note for a portion of an indebtedness secured by a mortgage for a large note would, ordinarily, make such note independent of the mortgage, and no verbal agreement that the new note should operate as a part of the mortgage would include it, as the fact of the giving of a new note is also a circumstance tending to show that it was not to be a part of the original indebtedness secured by the mortgage.”
The doctrine is that the mortgage will remain a lien until the debt be paid unless it be properly released. And the lien of the mortgage will follow the debt into the hands of an assignee though a new note be given to him therefor. Packard v. Kingman et al., supra; Hendershott v. Ping, 24 Iowa, 134; Watkins v. Hill, 8 Pick., 522. If it be shown in such cases that payment was intended by giving a new note this will defeat the mortgage.
It is unnecessary to consider other questions made upon the ' record, as for the errors above pointed out the judgment of the. District Court must be
Reversed.