Johnson County ex rel. School Fund v. Rugg

18 Iowa 137

• Court: Supreme Court of Iowa
• Decided: December 22, 1864
• Status: Published

Opinion

Wright, Ch. J.

1. Husband and wife: general judgment. Mortgage foreclosure. Appellant, a feme covert, made her note to Parrott, as School Fund Com-udssioner, for $500; her husband and two others joining therein as sureties. The note was for borrrowed money, but the wife did not receive any part of the same, nor did she know what was done with it. To secure this note, she executed a mortgage on certain real estate held in her name, but of which title she knew nothing until about the time said money was borrowed. Upon these facts the court below ordered a foreclosure of the mortgage, and that after the sale of the mortgaged premises, a general execution should issue against said appellant (Helen M. Pugg) for any deficiency.

Upon the authority of Patton v. Kinsman, 17 Iowa, 428, and Jones v. Crosthwaite, Id., 393, and the cases there cited, this j udgment must be reversed, so far as it directs a general execution against the wife. It was competent for her to execute a mortgage upon real estate held in her own name, and proper to order the foreclosure of the same. But the court could not direct a general execution to issue against her, if the mortgaged property failed to pay the debt Plaintiff’s remedy, as to the wife, extends only to the mortgaged property. And if this will not sell for sufficient, further relief is to be sought against the sureties.

This is the only question made by appellant, and with this modification the judgment below will be affirmed at appellee’s costs.