66 Iowa 448 | Iowa | 1885
It will be observed that Lundy obtained a judgment against Foster for the amount due on the Lombard mortgage. This portion of the judgment was not satisfied by the sale of the
I. It is undoubtedly true that the validity or priority of the Lombard mortgage was in no manner affected by the foreclosure of the Lundy mortgage and the sale of the real estate under the decree of foreclosure. As between Lundy and Foster, the former was not entitled to recover a judgment for the amount due on the Lombard mortgage; but, conceding that he was, he was not entitled to the money when the judgment was paid. In equity it belonged to the holder ■of the Lombard mortgage, and Lundy could have been compelled to so apply it. The judgment, however, was valid on its face, and Foster was compelled to pay it to Griggs, to whom Lundy had assigned the judgment. That money, therefore, could not, because of such assignment, be applied to the payment of the Lombard mortgage, or if it could it was not .so done. This being so, the burden in equity to pay the Lombard mortgage was shifted from Foster to Lundy, and .the latter, as between them, became primarily liable; and, as the Lundy mortgage has not been paid, Foster has the right
It is immaterial how the money due on the Lundy mortgage was paid. It may be said that the mortgage was satisfied by the sale of the land; but Foster had the right to redeem from the sale, and, as between Lundy and Foster, the former had no right to the money paid in redemption until the Lombard mortgage was paid. Foster had the right in equity to have it so applied, for the simple reason that he had paid the amount of the Lombard mortgage to Lundy or his assignee. It seems to us that-the equity of Foster is exceedingly strong and pursuasive as between him and Lundy. Such equity arose at least as early as March 10,1883, at which time Lundy converted to his own use, by means of such assignment, money which Foster had agreed to pay, and which he had the right to have applied on the Lombard mortgage.
We have examined the evidence, and unite in the conclusion that the amount allowed by the court is correct. Jones, Dickey & Co. must pay two-thirds, and the plaintiff one-third, of the costs in this court. The judgment of the circuit court on both appeals is
Affirmed.