85 Iowa 154 | Iowa | 1892
I. This action is for judgment on two-notes for the balance due, after crediting certain payments admitted to have been made, and for taxes paid on the mortgaged premises, and for a foreclosure of the mortgage securing the notes. The defendants, James-H. and Laura C. Creighton, plead a payment of two hundred dollars, admit they have an interest in the premises, and deny all the other allegations of the petition. As to the plea of payment, there is no evidence whatever to sustain it.
II. The mortgage securing the notes contained this provision: “It is further agreed that if default shall
In Bank v. Doe, 19 Vt. 463, it was contended that the statute of limitations began to run as to the entire note when the first year’s interest became due thereon, though by the terms of the note it did not mature for several years. The court said: “It is true that the orators might have instituted their suit for the recovery of the year’s interest, but they were not bound to do so. The statute does not begin to run upon the demand until the principal, or at least some separate and distinct portion of the principal, becomes due and payable, and then only upon such distinct portion.” In Nebraska City Nat. Bank v. Nebraska City Hydraulic, etc. Co., 14 Fed. Rep. 763, the suit was upon certain
The only state where such provisions have been held to set in operation the statute of limitations is Kansas. In Bank v. Peck, 8 Kan. 660, the condition In the mortgage made all the debt due and payable absolutely in case any part of the money secured by the mortgage should not be paid when due. The court held that the provision was usually for the benefit of mortgagees, but that the mortgagor had a right to take advantage of it; that, “when the payee, at the expiration of six months, failed to pay the note then due, by the terms of the contract all three notes became due,” and the statute of limitations began to run on all the notes, and a subsequent purchaser purchased after maturity. The case of Hemp v. Garland, 4 Q. B. 519, cited by the defendant, is at least distinguishable from the case at bar, as in that case no question of waiver was involved. This court has said in the case of Leavitt v.
III. It is claimed by the appellants that the judgment was void, and no decree could be rendered in the action, because no legal service was had on the defendant, Hugh E. Creighton. There was no judgment, rendered ,¡ against him. He had parted with all his interest to the defendant, James H. Creighton. So-long as no personal judgment- was sought against Hugh. E. Creighton, he' was not -a necessary party to the action, nor can the appellants urge the failure to serve said Hugh E. Creighton as an objection to the plaintiff’s decree and execution. Williams v. Meeker, 29 Iowa, 292,
The decree of the district court is affirmed.