Williams v. Meeker

Jun 15, 1870

Reporters:
Before:: Beck

Beck, J.

i. practice : evidence.310 At the trial the court, with the consent of plaintiff, assigned the affirmative of the issue to appellant. In support of his claim he introduced a deed for the land from Dorley, who was shown to be the patentee, to “Hunsgate & Vaughn.” This deed was admitted in evidence. He then offered in evidence a deed from A. J. Hunsgate and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍wife to E. W. Snelling, and also a deed from Snelling to himself. No evidence was given to show that A. J. Hunsgate was one of the grantees in the deed executed by Dorley. Objections to the introduction of these deeds were sustained. The grounds of the objections are not given. It is stated, however, at the conclusion of the bill of exceptions, “that the various objections made by the plaintiff, as shown throughout this bill of exceptions, are omitted at the request of defendant, but in fact valid objections were explicitly made.” Without a statement in the bill of exceptions of the grounds of objections to the evidence, we cannot inquire into the correctness of the rulings of the court thereon. Rev. § 3107 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍; Carleton v. Byington, 18 Iowa, 483. But we are assured by the language of the record above quoted that the rulings of the court were correct.

*294II. No evidence was offered by the defendant sustaining the allegations of his answer respecting the character ■of the title and interest of the mortgagors. Plaintiff introduced in evidence the note and mortgage, and the jury were instructed to find for plaintiff the amount due upon them. To the instruction given the jury, as well as to the decree entered upon the verdict, defendant objects. They are both apparently correct. Defendant failed to show any title or interest in the lands to support his claim thereto. He admits’ that the mortgagors did hold an interest or some title in the land when the mortgage ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was executed. For aught that appears in the record, it was a valid interest or title. But, from defendant’s own showing in his answer, they held a mortgageable interest, which they conveyed by the mortgage. Of course, the mortgage may be foreclosed upon that interest. Defendant, failing to shQw any interest in the land, cannot object to the foreclosure.

2. mortgage : parties ’ III. The fact that the mortgagors were not in court cannot be urged by defendant as an objection. They are not necessary parties to the action, and their absence does not appear to have worked prejudice to defendant. Murray v. Catlett, 4 G. Greene, 108; Johnson v. Monell, 13 Iowa, 300; Semple v. Lee, id. 304.

3. — provision forattorneys IY. It is provided by the mortgage, that, in case of foreclosure, a reasonable attorney’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍fee may be recovered by plaintiff upon the mortgage, and the same included in the judgment. Upon theotrial evidence was introduced as to the value of the services of the attorney in foreclosing the mortgage, and the jury allowed, as a part of their verdict, $75 therefor. This is objected to, on the ground that the stipulation in the mortgage cannot be enforced. ~We know of no reason why parties cannot be permitted to enter into such con*295tracts, and enforce them. A debtor, by refusing or neglecting to pay his creditor, imposes upon him the expense of resorting to the law to enforce his rights. It is equitable and just that the debtor, in such case, should pay the expenses which he has imposed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍upon his creditor. While the law makes no provision for enforcing such a conscionable obligation, it will certainly be esteemed a sufficient consideration upon which to base a contract whereby the party- binds himself to do that which in conscience he ought to do, or to re-imburse his creditor for expenses which his own wrong has made necessary to be incurred. See Nelson v. Everett, ante, 184.

Affirmed.