11 Iowa 183 | Iowa | 1860
I. The injunction was granted in this case, without notice to respondents. The answers plainly and fully, and without- any evasion, deny in substance all the matters relied upon in the bill, or as one of the cases expresses it, “the answers swear away and deny the equity stated in the bill.” Hutchins v. Hope, 12 G. & J. 244. The whole merits of the bill, therefore, being satisfactorily and clearly denied, the injunction was properly dissolved. This is the general rule, (much, it is true, being left to the discretion of the chancellor,) and nothing appears in this case to bring it within any of the exceptions, as that irreparable mischief is to result from such dissolution or the
II. The deed of trust was signed by the husband and wife, and duly and regularly acknowledged by each before a competent magistrate. The note secured by said deed was also signed by them, and the debt for which it was given was created subsequent to July 1, 1851, and the purchase of the homestead. In our opinion, this debt was created by written contract, executed by the persons having the power to convey the homestead, in such a sense, that within the meaning of section 1249, of the. Code, the property conveyed might be sold according to the terms of the trust deed.. The objection urged is not that the contract does not expressly stipulate that the homestead is liable for the debt, but that the debt existed or was created before the note was given,' and that therefore it was not created by this written contract, within the purview of the statute. This argument, as it seems to us, however, loses sight of the fact that in one and a practical and actual sense, every debt is created before the giving of the note or other instrument which becomes the evidence of the promisor’s or obligor’s liability. When the Code provides that.the homestead may be sold for debts created by written contract executed by the persons having the power to convey, it has reference primarily to the manner in which the creation of the debt is to be evidenced, that is in writing as contradistinguished from a parol contract, rather than the time at which the liability arises with reference to' the date of such note or obligation.
III. It is further urged that the statute contemplates a sale under execution when the debt is thus created, and that there is nothing giving the power to sell under a deed of trust. And we are referred to the concluding part of said section 1249, which provides that, “it (the homestead) shall not in such cases be sold, except to supply the deficiency
Judgment affirmed.