Braitch v. Guelick

37 Iowa 212

Opinion

Cole, J.

TMs is, in effect, an action to foreclose a mortgage. The plaintiff began the proceedings to obtain an injunction, ’ and f«r the transfer of the foreclosure to the district court, in order to contest the right of the mortgagee to foreclose, as well as the amount due. Rev., § 3659. The cause was therefore triable by the second method. Rev., § 3000. It was so tried, and the finding of the court stands here as the verdict of a jury5 and, of course, can only be interfered with or set aside when manifestly against the weight of evidence. TMs finding is not so. That the note was given partly in consideration for intoxicating liquors is directly proven. The intoxicating liquors and the other articles were sold in a lump for a fixed price. The illegal cannot be separated from the legal consideration, and therefore the illegal part taints the whole. It is shown that the mortgage itself specifies that the note was given for wine, beer and liquors, in a bar-room or saloon, and that Guelick drew the note and mortgage, and had knowledge of the consideration they were given for, to wit: The furniture, fixtures and contents of the saloon. Although whisky was not expressly mentioned, and there is no positive or direct proof that Gruelick knew that whisky was actually embraced in the sale, yet the facts shown too strongly lead to that inference to justify us, under the rule above stated, in setting aside the finding of the court. The note was void in the hands of the payee, or of any person having notice of the consideration. Rev., § 1571.

Affirmed.