State v. Wiley

15 Iowa 155, 1863 Iowa Sup. LEXIS 112

• Court: Supreme Court of Iowa
• Decided: October 8, 1863
• Status: Published

Opinion

Wright, J.

Upon several grounds, we think this demurrer was properly sustained.

It was as much the duty of appellants, for their own protection, as of the Fund Commissioner, to see that the loan was secured by mortgage on unencumbered real property. A failure on the part of the officer, in taking such security, to comply with the requirements of the statute, would not, in the absence of fraud, release them from their liability. Nor would a failure to have the property appraised, affect the validity of the mortgage. There is no pretense that defendants did not know the value of the property mortgaged, but the ground assumed is, that it was not appraised. Admit that it was not; such failure would not amount to a fraud upon defendants. Their right to the benefit of the security taken would be the same as if there had been an appraisement. The defense is not that the officer failed to take any security, but that it was insufficient.

But defendants do not show any injury resulting from the alleged misrepresentation. This action is to recover $50, interest due on the note. Now, though the property mort' gaged may not be sufficient to secure the principal and interest, there is no averment that it is not adequate to meet the sum now sought to be recovered. Then again, the solvency of the principal is not negatived in this answer. For anything that appears, he is entirely able to pay the full amount of the loan. A wrong without an injury cannot give a right of action. Nor can a misrepresentation, which occasions no prejudice, avail a party who sets it up as a defense.

Affirmed.