Barthol v. Blakin

34 Iowa 452

• Court: Supreme Court of Iowa
• Decided: July 25, 1872
• Status: Published

Opinion

Beck, Ch. J.

The demurrer was properly overruled. The language of the petition, avering that the mortgage was “ duly assigned to the plaintiff,” does not necessarily imply that it was transferred by writing. It may have been assigned verbally, and plaintiff’s title thereto and right to maintain the action, under such a transfer, would have been undoubted. Moore v. Lowry, 25 Iowa, 336; Creighton v. Gordon, Morris, 41; Jones v. Witter, 13 Mass. 304; Briggs v. Dorr, 19 Johns. 95; 1 Pars. on Cont. 197, and authorities cited; Rev., § 2757.

The language of the pleading above quoted will be liberally construed, and not most strongly against the pleader. As it is general in its terms, and is sufficient to cover an oral transfer, or an assignment by delivery, it may be so taken. Rev., § 2951.

If the petition was defective because it failed to state whether the assignment was in writing or oral; it should have been assailed by motion. ’Rev., § 2948.

Affirmed.