Sullivan Savings Institution v. Copeland, 71 Iowa 67

Sullivan Savings Institution v. Copeland

71 Iowa 67

| Iowa | 1887

Beck, J.

1. usury : who may plead : grantee of mortgagor. I. The action, was originally brought against Oopeland, the mortgagor, and Brewer, to whom he had sold and conveyed the land. The defendants united hi an answer, setting up as a defense usury in note anq mortgage. When the cause was called forbearing, it was dismissed as to defendant'Oopeland, the mortgagor. Thereafter the answer in the case was in fact the answer of Brewer alone, as there was no other defendant in the case; and the defense of usury was therefore pleaded by him alone, the mortgagor being out of the case. It is the settled rule recognized by this court that the debtor can alone plead the defense of usury to an action on a contract. The grantee of a mortgagor, who assumes the payment of the mortgage, cannot set up the defense of usury. See Miller v. Clarke, 37 Iowa, 325 ; National Life Ins. Co. v. Olmsted, 52 Iowa, 354 ; Burlington Mut. Loan Ass'n v. Heidar, 55 Iowa, 424, and cases cited therein. Brewer, therefore, could not avail himself of the defense of usury.

2. practice on appeal : amended abstract not denied. II. Counsel complain of the refusal of the court below to sustain a motion made by defendants for a decree on the pleadings. But the amended abstract, which is not denied, shows that no such motion was , made.

3. practice : plea filed after submission without leave. III. Complaint is also made of the ruliug of the court in striking out an answer filed by Brewer, setting up that he and Oopeland had agreed at the time of the conveyance of the land that Brewer should have the right and authority to set up the defense of usury to proceedings to enforce the mortgage. We need not determine whether this agreement would confer upon Brewer the right to plead the usury in this action, for the reason that the record, as disclosed by the amended abstract, shows that the answer, which presents new issues, was filed after the cause was fully submitted, and without leave of the court. This answer was rightly stricken from the files.

These views dispose of all questions in the case. The decree of the circuit court is Affirmed.