147 Iowa 630 | Iowa | 1910
The courts of the country do not seem to be agreed upon the first question presented for our determination, but the disagreement is more apparent than real. Upon the 'broad proposition it seems that the courts of Massachusetts, Maine, New Hampshire, Minnesota, Arkansas, and Oklahoma are committed to the doctrine that an attachment of the mortgaged property waives the lien of the mortgage. See Evans v. Warren, 122 Mass. 303; Whitney v. Farrar, 51 Me. 418; Haynes v. Sanborn, 45 N. H. 429; Dyckman v. Sevatson, 39 Minn. 132 (39 N. W. 73); Cox v. Harris, 64 Ark. 213 (41 S. W. 426, 62 Am. St. Rep. 187); Dix v. Smith, 9 Okl. 124 (60 Pac. 303, 50 L. R. A. 714). On the other side are the following: Madson v. Rutten, 16 N. D. 281 (113 N. W. 872, 13 L. R. A. (N. S.) 554); Byram v. Stout, 127 Ind. 195 (26 N. E. 687); Barchard v. Kohn, 157 Ill. 579 (41 N. E. 902, 29 L. R. A. 803); Howard v. Parks, 1 Tex. Civ. App. 603 (21 S. W. 269); State Bank v. Mottin, 47 Kan. 455 (28 Pac. 200, 27 Am. St. Rep. 306); First Bank v. Johnson, 68
IV. As already suggested, there was no election of remedies in the case, for the reason that the proceedings were not inconsistent, and for the further reason that no such election was pleaded.
The trial court was in error in denying the decree of foreclosure under the testimony and the issues joined, and the ease must he reversed and remanded for a decree in harmony with this opinion.
Reversed and remanded.