Thompson v. Bertram

| Iowa | Apr 7, 1863

Lowe, J.

The.foreclosure of a mortgage in which'the mortgagor and his vendees are made parties defendants, the latter having assumed in their deed of purchase to pay the debt of the mortgagor, a personal judgment was rendered against them as well as a special decree of foreclosure against the property. The vendees appeal, insisting that it was not competent for the Court to render such a judgment against them. This precise question, after full argument and careful consideration, we decided against the defendants in the case of Corbett v. Waterman, 11 Iowa, 87; affirming the same principle a second time in the case of

- Moses v. The Clerk of Dallas District Court, 12 Iowa, 140. Able as the argument is by the counsel for appellants, we see no sufficient reason for changing our mind, or re-discussing the question. It may be well to observe, however, that we notice in the March number, 1863, of the American Law Eegister, the following abstract of a decision just made by the Court of Appeals in the State of New York:

“ A mortgagee may maintain a personal action against a ^ grantee of the mortgaged premises who has assumed to J pay the incumbrance. He may pursue this remedy without f foreclosing the mortgage, and without joining the rnbrt- | gagor as defendant.” Burr v. Beers, 24 N.Y., 178" court="NY" date_filed="1861-12-05" href="https://app.midpage.ai/document/burr-v--beers-3600335?utm_source=webapp" opinion_id="3600335">24 N. Y., 178. This is ! only a confirmation of a rule which we think too well set ;l tied to be disturbed at present. '

Affirmed.