53 Iowa 694 | Iowa | 1880
It is a general rule, and one abundantly established by authority, that where a mortgagee receives a conveyance of the mortgaged property his mortgage will not merge in the legal title, but will be kept alive to enable him to defend under it against the title or lien of another acquired after the execution of the mortgage, if such protection is to the interest and consistent with the intention of the mortgagee, and in the absence of evidence to the contrary liis intention will be presumed to correspond with his interest. Wickersham v. Reeves & Miller, 1 Iowa, 413; Wilhelmi v. Leonard, 13 Id., 330; Linscott v. Lamart, 46 Id., 312; First National Bank of Waterloo v. Elmore, 52 Id., 541; Stimpson v. Pease, ante, 572; Jones on Mortgages, Vol. 1, § 874.
The written agreement between Davis and Davenport, by which the compromise of said suits was effected, contains this stipulation: “The said Davenport is to have the said real estate released from the liens of the sheriff (Woodward) mortgages and George A. Davenport’s judgments, and said Davis to have his attorney obtain necessary release of the Ooykendall judgment.” The real estate mentioned in this contract was that conveyed to Davis, and which is now the subject of controversy. It is averred in the cross-petition of Ooykendall & Company that Davis assumed the payment of the judgment; no such obligation seems to have been created by this contract. It was no more than an undertaking upon the j>art of Davis to protect himself against that judgment, [f he had procured a formal release of it without payment, the judgment would still have remained unpaid, and his contract with Davenport would have been performed. It appears in evidence that all of the senior lieu holders released their liens upon this property without payment, and it further appears that it was thought by 'the parties that Davis could procure through his attorney a release of this judgment with
Under this state of facts it was clearly to the interest of Davis to hold the mortgage lien as a protection against the judgment. That such was his intention can admit of no question. It cannot be believed that he intended voluntarily to give up and surrender his senior mortgage lien to be postponed to the lien of a junior judgment to the amount of $1,900. He was under no obligation to Davenport to make suck a sacrifice, and bis interest was clearly against it, and we think his intention was consistent with his interest.
Reversed.