Crossen v. White

19 Iowa 109

• Court: Supreme Court of Iowa
• Decided: June 22, 1865
• Status: Published

Opinion

Cole, J.

i. RismsMPmortgage. I. The first point made by the appellant is, that the plaintiff, Crossen, has not shown that he had any such interest in the lot in question, at the time 0f' the alleged agreement with defendant, as would entitle him to redeem. This is based upon the ground, that the plaintiff was only a mortgagee, and held the mortgage to secure him against a contingent liability, and had not, at the-time of the agreement, been damnified in any manner whatever.

Revision, “Section 3334. Any creditor whose claim, becomes a lien prior to the expiration of the time allowed by law for the redemption by creditors, may redeem. A mortgagee may thus redeem before or after the debt secured by the mortgage falls due.” The plaintiff being a mortgagee, had the right, under this section of the Revision, to redeem, although the liability secured by the mortgage was a contingent one, and might possibly never ripen into a certainty. The fact that he held a mortgage upon the property, to which he might be compelled ultimately to resort to obtain payment of tbe liability secured by it, is sufficient to entitle him to redeem.- It is true, as a general rule, that more or less uncertainty exists in the case of every mortgage, whether the mortgagee will be compelled to resort to the mortgaged property to collect the debt secured by it; for the debtor may pay the debt without such resort. This doubt, however, does not affect the mortgagee’s right to redeem, nor does the addition of a still further doubt, as to whether the debt secured will ever become fixed and certain, defeat that right. It is sufficient if the mortgagee may eventually have to resort to the mortgage security.

2. pleadSurreref verdict. ' It is further claimed by appellant that the plaintiff has not averred in his petition that he was the owner of the lot, or mortgagee, or possessed of any interest therein, and therefore he could not recover under , . . . . such petition, m any event. If the petition was vulnerable to this objection, it should have been assailed by motion or demurrer; such defect is cured by the verdict. Gates & Patchin v. City of Davenport, 9 Iowa, 227; Pollen v. Wisner & Van Vark, 11 Id., 190.

3 pbac *ofEpb]e“e tlon' II. The only other point made by counsel for appellant is, that the parol contract, as alleged in the petition, whereby White agreed to allow plaintiff all he could sell the lot for, over his bid, was an agreement for the transfer of an interest in real-property, and is therefore within the statute of frauds and void.

Without stopping now to discuss the question, whether, under our Revision, the position assumed by the appellant is or not, in any case, correct law, we remark, that our statute (Rev., § 4006) simply provides, that “ no evidence of such contract shall be competent” unless in writing. In this case the parol evidence was received without objection, arrd fully sustains the plaintiff’s case. The defendant having failed to object to the testimony at the proper time, or at any time, in the District Court, cannot avail himself of any objection to it in this court.

Affirmed.