Kellogg v. Colby

49 N.W. 1001, 83 Iowa 513

• Court: Supreme Court of Iowa
• Decided: October 19, 1891
• Status: Published

Opinion

Granger, J.

1. Appeal: notice: service upon coparties: jurisdiction. I. There is a motion to dismiss the appeal for the reason that the appellant had served no notice of appeal on his codefendants, ' Fuller and Parker, under the requirements * ’ •** of Code, section 3174, as follows: “A part of several coparties may appeal; but in such cases they must serve notice of the appeal upon all the other coparties, and file the proof thereof with the clerk of the supreme court.” In Moore v. Held, 73 Iowa, 538, it is held that the service of the notice under said section is not jurisdictional. It is also there held that, where there is a failure to serve such notice on all the coparties, this court has jurisdiction to determine such questions as affect only the appellant and che adverse party.

The only question presented by the appeal is whether or not the land now owned by the defendant Colby is liable for the Johnson mortgage under the judgment subrogating ■ the plaintiff to the rights of Johnson. The judgments of the district court affecting the interests of the defendants, Fuller and Parker, are not appealed from, and hence, as to them, are conclusive, and of such a character that the determination of the question presented by the appeal can in no manner affect them. It is only contended that, if the deed tendered by Fuller to the plaintiff was void, “it would destroy all defenses of Parker based on the alleged breach of warranty.” But Parker has not appealed, and the decree that the deed is void is conclusive,' and we think has support in the record. The motion to dismiss the appeal must be overruled.

2. Mortgage: assumption by subsequent grantee: payment: subrogation. II. The plaintiff, by purchasing the land under an agreement to pay the Johnson mortgage as a part of the purchase price, not only took the land x x * ° subject to the mortgage, but assumed a personal liability to Johnson for its payment. When Colby purchased the land under the foreclosure judgment, the record gave to him notice of this undertaking and obligation on the part of the plaintiff. It is true that Colby, when he purchased the land at the foreclosure sale, had notice from the record that the Johnson mortgage was unpaid, and a prior lien, for which his land might become liable; but he, at the same time, had knowledge of the plaintiff’s personal undertaking to pay the debt. As between the plaintiff and Johnson, this personal obligation never ceased until the debt was paid. In paying the debt, he simply paid for the land he bought from Fuller, and which he afterwards sold to Parker with covenants against incumbrances. The title of the land now vests in Colby by virtue of the sheriff’s deed. The judgment below in its effect is that, for some reason, the plaintiff’s obligation to pay the Johnson mortgage became secondary; for the right of subrogation never follows an actual primary liability. Jones on Mortgages, sec. 792-, Sheldon on Subrogation, sec.26; Pomeroy on Equity 'Jurisprudence, secs. 707, 1212, note 1. Looking to the appellee’s argument for grounds to sustain the action of the court, it is said that “the land being the primary fund, and the plaintiff being also personally held for payment, * * * he had the. right to pay the mortgage, and be subrogated to Johnson’s’rights.” Authorities are cited announcing some general principles as to subrogation, but none supporting the rule as claimed. It is not a case, as we understand, .where the “land is the primary fund” for the payment. The plaintiff’s personal obligation was first, — primary,—against which he could plead no excuse, and that obligation existed to the moment he paid the debt. The obligation was entirely uninfluenced by Colby’s conduct or situation as to the land.

Importance is attached to the fact that the plaintiff paid the mortgage, intending to be subrogated to the rights of Johnson. But the intent so to do could avail him nothing, in the absence of a legal right to be so subrogated. His obligation was not of a character to entitle him to such a right. It will be seen, by reference to the facts, that Parker made to Colby a deed of the land June 14,1887, and some importance is attached to that fact by the appellee; but nothing more need be said than that Colby took nothing by that deed.

The judgments in the case that are now conclusive show that the rights of Parker were lost because of the breach of the covenants of warranty by the plaintiff-to Parker. Colby, as a consideration for the deed, merely agreed to pay the notes that Parker gave to the plaintiff, if adjudged valid. They were adjudged of no force because of the failure of title from the plaintiff to Parker. "We are clearly of the opinion that the court erred in subrogating the plaintiff to the rights of Johnson under the/mortgage. See, in support of our conclusion: Goodyear v. Goodyear, 72 Iowa, 329; Byington v. Fountain, 61 Iowa, 512; Massie v. Mann, 17 Iowa, 131; Morrison v. Morrison, 38 Iowa, 73. There are numerous other cases to the same effect. Reversed.