Garretson v. Ferrall

Supreme Court of Iowa

Garretson v. Ferrall

6 L.R.A. 377, 42 N.W. 637, 78 Iowa 166, 1889 Iowa Sup. LEXIS 341

DecidedJune 6, 1889

StatusPublished

This text of 6 L.R.A. 377 (Garretson v. Ferrall) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Garretson v. Ferrall, 6 L.R.A. 377, 42 N.W. 637, 78 Iowa 166, 1889 Iowa Sup. LEXIS 341 (iowa 1889).

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Opinions

Given, C. J.

There is a controversy between counsel as to the correctness of the abstracts, but enough appears without question to show that the controlling point of difference is whether the plaintiff could maintain this action without an assignment to him of an interest in the note and mortgage of W. C. to O. S. Garretson. Whether the plaintiff waived his exception to the ruling on the demurrer by going to trial is immaterial for the presentation of this question, as it is evident from the testimony that the court sustained the motion ordering a verdict for defendants upon the third and fourth grounds assigned for the motion. There was evidence as' to the existence of the bond and its conditions, and of notice to the sheriff, upon which .the court would unquestionably have submitted the case to the jury. It has been so frequently held by this court as not to require citation that the mortgage is a mere incident to the debt; that the assignment of the debt carries the mortgage with it; and that the assignment of the mortgage without an assignment of the debt is a nullity. Counsel for appellant are understood as resting their position upon the claim that, when 0. S. Garretson sold the claim in suit to C. L. Garret-son, the mortgage debt became thereby extinguished and paid to the value of the claim, whether O. S. Garretson obtained full value or not; that it is a mere matter of accounting between W. C. Garretson, mortgagor, and 0. S. Garretson, mortgagee; and, if the claim sold is sufficient to pay the debt, there was no debt or mortgage to assign; and, if not fully paid thereby, the mortgagee is the one to hold the balance of the debt and mortgage. [169]*169Tliis position is not tenable. Had O. S. Garretson, the mortgagee, brought this suit, he would recover because he had the mortgage debt and its securities, and not because some other or different debt had accrued in his favor. The giving of the bond and taking the goods substituted the bond as the security instead of the goods, and the remedy for the mortgage debt and its security may be upon the bond. If, by assignment without the debt to C. L. Garretson, he would not have acquired any right of action as to the goods, he certainly acquires none upon the bond without the assignment of the debt. There was no error in the action of the court in overruling the demurrer, nor inordering a verdict for the defendants. Affirmed.

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Given, C. J.

There is a controversy between counsel as to the correctness of the abstracts, but enough appears without question to show that the controlling point of difference is whether the plaintiff could maintain this action without an assignment to him of an interest in the note and mortgage of W. C. to O. S. Garretson. Whether the plaintiff waived his exception to the ruling on the demurrer by going to trial is immaterial for the presentation of this question, as it is evident from the testimony that the court sustained the motion ordering a verdict for defendants upon the third and fourth grounds assigned for the motion. There was evidence as' to the existence of the bond and its conditions, and of notice to the sheriff, upon which .the court would unquestionably have submitted the case to the jury. It has been so frequently held by this court as not to require citation that the mortgage is a mere incident to the debt; that the assignment of the debt carries the mortgage with it; and that the assignment of the mortgage without an assignment of the debt is a nullity. Counsel for appellant are understood as resting their position upon the claim that, when 0. S. Garretson sold the claim in suit to C. L. Garret-son, the mortgage debt became thereby extinguished and paid to the value of the claim, whether O. S. Garretson obtained full value or not; that it is a mere matter of accounting between W. C. Garretson, mortgagor, and 0. S. Garretson, mortgagee; and, if the claim sold is sufficient to pay the debt, there was no debt or mortgage to assign; and, if not fully paid thereby, the mortgagee is the one to hold the balance of the debt and mortgage. [169]*169Tliis position is not tenable. Had O. S. Garretson, the mortgagee, brought this suit, he would recover because he had the mortgage debt and its securities, and not because some other or different debt had accrued in his favor. The giving of the bond and taking the goods substituted the bond as the security instead of the goods, and the remedy for the mortgage debt and its security may be upon the bond. If, by assignment without the debt to C. L. Garretson, he would not have acquired any right of action as to the goods, he certainly acquires none upon the bond without the assignment of the debt. There was no error in the action of the court in overruling the demurrer, nor inordering a verdict for the defendants. Affirmed.

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6 L.R.A. 377, 42 N.W. 637, 78 Iowa 166, 1889 Iowa Sup. LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garretson-v-ferrall-iowa-1889.