Beckett v. Clark

• Decision Date: 13 December 1938
• Docket Number: 44601.
• Citation: 282 N.W. 724,225 Iowa 1012
• Parties: BECKETT v. CLARK et al.
• Court: Iowa Supreme Court

282 N.W. 724

225 Iowa 1012

BECKETT v. CLARK et al.

No. 44601.

Supreme Court of Iowa.

December 13, 1938

Appeal from District Court, Monroe County; Charles F. Wennerstrum Judge.

This is an action to foreclose a mortgage. The defense was, in substance, that having taken a judgment on the secured note which judgment was barred by section 11033-g2 of the Code before the decree was entered, the plaintiff's right to foreclose her mortgage was likewise barred. The trial court declined to take defendants' view of the statute and entered a decree in foreclosure. From this decree defendants appeal.

Affirmed.

John F. Abegglen, of Albia, for appellants.

Mabry & Mabry and Theodore B. Perry, all of Albia, for appellee.

SAGER Chief Justice.

The defendant D. N. Clark has not appealed, and his claims will have no attention here. Appellants will be referred to as defendants.

On February 20, 1929, defendants gave to plaintiff a note for $2,800, secured by the mortgage involved herein, and on April 19, 1933, plaintiff brought suit at law thereon. This action was, on motion of defendants, transferred to equity, and in that court, on December 20, 1933, plaintiff had decree for the amount due. No provision was made either for foreclosure or the appointment of a receiver.

On February 6, 1935, plaintiff commenced the case now before us in which, among other relief asked for, she prays that the mortgage be decreed to be a lien from its date, February 20, 1929, and that it be foreclosed. A decree for $4477.07 was entered on July 18, 1938. The prayer also asks for other relief common to this class of actions. It will thus be seen that plaintiff's action to foreclose was commenced before two years had elapsed from the date of the judgment on the note, but the decree was entered after the bar of section 11033-g2 had become complete against the judgment.

Defendants state the basis of their appeal as follows: " There is no dispute as to any of the facts in this case. The only issue is as to the effect and interpretation of Section 11033-g2, Code 1935. If this statute did not extinguish and utterly destroy the force and vitality for any purpose of the original judgment two years after this statute became effective, May 3, 1935, then the judgment and decree of the trial Court is correct."

This does not accurately state the proposition before us as we see it. The precise question is this: Is the plaintiff, who brought her suit to foreclose before the judgment taken on the note alone was barred, and whose mortgage had years yet to run, deprived of her right to enforce her lien even though her debt has admittedly not been paid? Or, to state it differently: Conceding the fact to be as it is here, that the defendants' debt to plaintiff was never paid, did the bar of section 11033-g2 against the judgment cancel the debt which defendants owe to plaintiff?

We again call attention to the fact that this foreclosure suit was brought before the judgment was barred. To the mind of the writer this is probably not important in reaching the correct conclusion here; but the decision of the question whether a different result would be required if the suit had been started after the two-year period had elapsed (no rights of third parties intervening) is reserved to the time when it shall arise.

Section 11033-g2, Code 1935, which became effective May 3, 1935, reads as follows: " Judgments heretofore rendered or in actions now pending upon promissory obligations secured by mortgage or deed of trust of real estate, and upon which judgments or actions now pending the holder thereof brought suit direct upon the said promissory obligation without a foreclosure against said security, shall have no force or vitality for any purpose other than a set-off or counterclaim from and after the expiration of two years from the passage of this act * * * and no execution shall be issued thereon."

The case before us is one of first impression. We can, therefore, find no help in the decided cases except by applying by analogy the principles which they announce.

In Equitable Life Ins. Co. v. Rood, 205 Iowa 1273, 218 N.W. 42, we said [page 45]: " We have long recognized the rule that the holder of such a note may sue directly on the note in a law action and recover judgment, and that he may thereafter maintain a separate action for the foreclosure of the mortgage given to secure said indebtedness."

See, also, Gilman v. Heitman, 137 Iowa 336, 113 N.W. 932.

These cases announce the general rule. Rossiter v. Merriam, 80 Kan. 739, 104 P. 858, 24 L.R.A.,N.S., 1095, and note; 34 C.J., Title, Judgments, sec. 1163; 15 R.C.L., Title, Judgments, sec. 243; 19 R.C.L., Title, Mortgages, sec. 219.

And putting the note in judgment does not operate to discharge the mortgage.

In Port v. Robbins, 35 Iowa 208, we said: " The law is well settled, that a mortgage given to secure a debt, and not the note or bond or other evidence of it, remains a lien on the mortgaged property until the debt is paid; that no change in the form of the evidence or the mode or time of payment, nothing short of actual payment of the debt, or an express release, will operate to discharge the mortgage. The mortgage remains a lien until the debt it was given to secure is satisfied, and is not affected by a change of the note, or by giving a different instrument as evidence of the debt, or by a judgment at law on the note merging the original evidence of indebtedness. [Citing authorities.]"

Some of the reasons for the foregoing announcements are well stated by Evans, J., in Schnuettgen v. Mathewson, 207 Iowa 294, 222 N.W. 893, 896: " We have held that a mortgagee may maintain a personal action on his note against the debtor, and may, after judgment therein, foreclose his mortgage. But we have never held that a mortgagee, who has foreclosed his mortgage by good personal service, may afterwards maintain a separate action upon his promissory note. Indeed we have held affirmatively to the contrary. Kenyon v. Wilson, 78 Iowa 408, 43 N.W. 227, and cases therein cited. The reason for the distinction is apparent. The note is the evidence of the debt. When merged in judgment, the judgment becomes the evidence of the debt. Jurisdiction in a foreclosure suit rests in the county where the mortgaged property is situated. A creditor may be able to obtain personal jurisdiction of his debtor where he finds him without acquiring such jurisdiction in the county where the mortgage must be foreclosed. But, when the mortgagee forecloses his mortgage upon personal service, he exhausts the full measure of remedy available to him against such defendant."

The Federal court, in Cutler Hardware Co. v. Hacker, 8 Cir., 238 F. 146, 147, announced this general principle " While merger in judgment is the general rule, yet according to recognized...