81 Iowa 647 | Iowa | 1891
I. This case is triable here de novo. The facts are these: The plaintiff seeks in this action to foreclose a mortgage on lands executed September 8, 1888, to secure three promissory notes before given. The mortgagee assigned the mortgage to plaintiff, who brings this action, making the mortgagors, Menold and wife, and the senior mortgagees, Capen and Helsell, ■defendants. These mortgagees separately hold mortgages executed by Menold and wife on the land covered by plaintiff’s mortgage. These mortgages were executed and filed for record in 1888 and 1884, before the execution of plaintiff’s mortgage. The dates of the execution and recording of the mortgages need not be more particularly stated. The time of payment of the
II. The defendants, Capen and Helsell, insist that, as the debts secured by their mortgages were not due, plaintiff cannot maintain his action to redeem and foreclose ; that, the time for the payment of the mortgages being fixed by contract, plaintiff cannot interfere and require defendants to accept the money due on the mortgages by redeeming therefrom.
III. We need not determine whether, if plaintiff had known when he took his mortgage, or could have been charged with notice, that the payment of the debts had been extended, he could enforce his right to redeem, and foreclose before the maturity of the debts under the new contract. The case, as presented by the abstract, does not show such knowledge or notice. We are to determine whether plaintiff, without such knowledge or notice, is bound by the contract of extension made by the senior mortgagees and the mortgagors.
IV. It is presumed that plaintiff, when he took his mortgage, relied upon the record to disclose the
Other points need not be considered. It is our conclusion that the decree of the district court ought to be AFFIRMED.