Fejavary v. Broesch

2 N.W. 963, 52 Iowa 88

Opinion

Seevers, J.

It has been held that the waiver of the benefit of the exemption laws in a promissory note was against public policy and void. Curtis v. O'Brien et al., 20 Iowa, 376. Does the case at bar come within the rule established in that case? We think not. In the cited case the contract was executory, and this court refused to enforce it because such a waiver is not recognized by statute and was against public policy. But the statute does recognize the validity of a mortgage on property which is exempt from execution. The validity of such a mortgage has never been doubted. Nor is it material that the property mortgaged was not in existence at the time it was executed. Whatever doubts there may have been on this subject were settled in this State in Scharfenburg v. Bishop, 35 Iowa, 60. The same principle was recognized in Brown v. Allen, Id., 306.

Technically, it is said, the instrument in this case cannot be regarded as a mortgage, because it does not contain a grant or conveyance of the property. But clearly it creates a lien or equitable charge, and the right of a party to execute it, and its validity, must depend on the same principle as a mortgage. What does it matter what this instrument is called? the substantial right created is the same as a mortgage. Why may not the one be executed as well as the other? The validity of the lien should be recognized in the one case as in the other. Both may be executed by a party capable of contracting on a sufficient consideration and for a lawful purpose.

There is no essential difference between a mortgage and the instrument in question, unless it be in the mode of enforcement; but this does not touch or affect the question of power or validity of either instrument when executed. Such instruments as that in the present case have been upheld in Everman & Co. v. Robb, 52 Miss., 653; McCaffrey v. Wodin, 65 N. Y., 456, and Butt v. Ellett, 19 Wall., 544.

The motion to discharge the property was not based on the ground that the plaintiff had not proceeded in the proper manner. It caunot be made here for the first time. We must not be understood as intimating it would have prevailed if the objection bad been made below.

Reversed.