Cooley v. Hobart

8 Iowa 358

• Court: Supreme Court of Iowa
• Decided: April 18, 1859
• Status: Published

Opinion

Wright, C. J.

It is urged that .the answer of defendants, is not overcome by the testimony of two witnesses; that plaintiffs did not prove their claim; and that no consideration is shown for the execution of the mortgage. To all this, the answer is, that the defendants admit, by their pleadings, the execution of the mortgage and note, and they do not pretend to deny that the amount claimed in the petition is due and owing. There was, therefore, nothing for the plaintiff to prove, for their case was admitted. That the mortgage was given to secure a debt previously contracted, would not invalidate it. Nor does it make any differei.ee that it was given by Hobart and wife, to secure the debt of the firm of which he was a member. 2 Hilliard on JVLort., ch. 40, 338.

It is further objected, that the petition asks a judgment on the note, and a foreclosure of the mortgage, in the same action ; and that thus there is a “ union of law and equity in one proceeding.” The answer is, that there is no such union, and that the judgment prayed for is authorized by the express language of the Code. Section 2084. The final adjudication was formerly called a decree ; under the Code, it is called a judgment; but the substance and essence of the proceeding remains the same.

What is said in Sands v. Wood, 1 Iowa, 263, upon this subject, and which has been referred to by counsel, was thought necessary, by the writer of the opinion,- under the peculiar circumstances of the case — it being a proceeding against the assignor, as also the mortgagor and maker of the note. It was not intended, by any means, to hold that a party could not ask and obtain a judgment in the same proceeding, against the maker for the amount found due on the note, and for the foreclosure of the mortgage. The difficulty in the mind of the writer was, that Wood was a party, who was indorser only, and that the claim against him was at law; and so presented the idea of a claim against 'him and Thompson on the note alone, and also one on Thompson only, on the mortgage — that is, the mortgage with its attendant note. The present case asks judgment against all the makers of the note, and a foreclosure of the mortgage given by one of them, to secure it. To this, there is no objection.

Judgment affirmed.