Ream v. Jack

Supreme Court of Iowa

Ream v. Jack

44 Iowa 325

DecidedOctober 18, 1876

StatusPublished

This text of 44 Iowa 325 (Ream v. Jack) 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.

Bluebook

Ream v. Jack, 44 Iowa 325 (iowa 1876).

Pincite

Opinion

Servers, Ch. J.

I. It clearly and very satisfactorily appears, that B. B. Jack assumed and agreed to pay the 1. costkact: mortgage at the time Watson conveyed the premises to him, and that Montgomery, in consideration of such promise, released Watson from all personal liability, and as between him and Watson agreed to look alone to Jack and the mortgaged property for the payment of the indebtedness. Certainly Jack should do as he agreed, and the agreement thus made is binding. It was so held in Semple v. Lee, 13 Iowa, 304.

2. pkacticb: of parties. II. The cross-petition contained proper averments, showing the interest of the plaintiff in the subject matter of the controversy, and the defendants having answered, it is too late to raise now for the first time the objection that the petition is insufficient in this respect. When the order of substitution was made, the legal effect was to strike out of the cross-petition the name of Montgomery and insert in place thereof that of the plaintiff. There was no [327]*327necessity for the plaintiff to file another petition, or formally on the record to adopt the one on file.

III. It is urged, the decree does not amount to a foreclosure of the mortgage; we, however, think otherwise. The decree sufficiently forecloses the mortgage, at least such is its legal effect, although it is not in the usual and ordinary form; but if such was not the case, the error in this respect is one of which the defendants cannot complain. So, too, as to the alleged error that the judgment only draws six per cent interest, instead of ten, as provided in the mortgage.

s. mortgage: evidence. ' IY. As the deed from Watson to Jack had been corrected so as to provide the latter should pay the mortgage, it is urged that it was improper to base the decree on oral testimony, but that it should have been so found and decreed, “ if at all, because the deed so provided.”

We do not know upon what testimony the court below based the finding and decree. The abstract shows the contract was proven by parol evidence, and that the original decree was also introduced in evidence. Both together are sufficient, and the objection is not well taken.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Servers, Ch. J.

I. It clearly and very satisfactorily appears, that B. B. Jack assumed and agreed to pay the 1. costkact: mortgage at the time Watson conveyed the premises to him, and that Montgomery, in consideration of such promise, released Watson from all personal liability, and as between him and Watson agreed to look alone to Jack and the mortgaged property for the payment of the indebtedness. Certainly Jack should do as he agreed, and the agreement thus made is binding. It was so held in Semple v. Lee, 13 Iowa, 304.

2. pkacticb: of parties. II. The cross-petition contained proper averments, showing the interest of the plaintiff in the subject matter of the controversy, and the defendants having answered, it is too late to raise now for the first time the objection that the petition is insufficient in this respect. When the order of substitution was made, the legal effect was to strike out of the cross-petition the name of Montgomery and insert in place thereof that of the plaintiff. There was no [327]*327necessity for the plaintiff to file another petition, or formally on the record to adopt the one on file.

III. It is urged, the decree does not amount to a foreclosure of the mortgage; we, however, think otherwise. The decree sufficiently forecloses the mortgage, at least such is its legal effect, although it is not in the usual and ordinary form; but if such was not the case, the error in this respect is one of which the defendants cannot complain. So, too, as to the alleged error that the judgment only draws six per cent interest, instead of ten, as provided in the mortgage.

s. mortgage: evidence. ' IY. As the deed from Watson to Jack had been corrected so as to provide the latter should pay the mortgage, it is urged that it was improper to base the decree on oral testimony, but that it should have been so found and decreed, “ if at all, because the deed so provided.”

We do not know upon what testimony the court below based the finding and decree. The abstract shows the contract was proven by parol evidence, and that the original decree was also introduced in evidence. Both together are sufficient, and the objection is not well taken.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

44 Iowa 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ream-v-jack-iowa-1876.

Opinion

Related

Cite This Page — Counsel Stack