Booknau v. Burnett

49 Iowa 303

• Court: Supreme Court of Iowa
• Decided: October 23, 1878
• Status: Published

Opinion

Rothrock, Ch. J.

1. mortgage:foreclosure: promissory i moktomoe The plaintiff testified in the court below that he had expended and advanced for the defendant the full sum two thousand dollars, and that, therefore, there was no failure or partial want of consideration for the note. The court found otherwise, and the plaintiff has not appealed. The defendant, in prosecuting her appeal, does not claim that the finding of the court was in too great an amount. We will, therefore, consider that question as settled, and the amount of the -principal of the note as fixed at one thousand six hundred and four dollars and ten cents.

We have not been favored with an argument upon the part of plaintiff, but, from the pleadings and the evidence introduced by him, as we understand the record, he did not claim that he should have a judgment for two thousand dollars of principal, unless it should appear that he had advanced for or paid the defendant that amount. He did not pay the amount named in the note. There was nearly four hundred dollars of the amount named which was without any consideration whatever. The loan was made for a term of ten years, with the provision that for a default in the payment of the annual interest or taxes the whole amount should become due. We are at a loss to discover how she could be in default upon this contract, at least, beyond the interest actually due. She had the right to call upon the plaintiff for the payment of nearly 'four hundred dollars in performance of his contract. He demanded interest, not upon the money actually advanced by him, but upon the whole two thousand dollars. He had no right to make this demand, and the defendant was not in default for refusing to pay it. The amount was a subject of dispute between the parties. It never was ascertained until fixed by the decree of the court, and we think all that the plaintiff can reasonably ask under his contract is the interest payable annually, not on two thousand dollars, but upon one thousand six hundred and four dollars and ten. cents. To this extent he should have the right to foreclose the mortgage, leaving the principal debt to become due by lapse of time, or by some future default in the payment of annual interest.

In our opinion the decree should be a foreclosure for interest, payable annually, on one thousand six hundred and four dollars and ten cents from the date of the note to the present time. The defendant should pay the costs made in the court below, and plaintiff should pay the costs in this court, and in view of the fact that this foreclosure is for an inconsiderable amount the attorney’s fee should be reduced to twenty-five dollars. A decree in accord with this opinion will be entered in this court, or the cause will be remanded to the court below for that purpose, at the option of appellee.

Reversed.