Briggs v. Iowa Sav. & Loan Ass'n

• Decision Date: 24 May 1901
• Citation: 114 Iowa 232,86 N.W. 320
• Court: Iowa Supreme Court
• Parties: BRIGGS ET AL. v. IOWA SAVINGS & LOAN ASS'N.

114 Iowa 232

86 N.W. 320

BRIGGS ET AL.

v.IOWA SAVINGS & LOAN ASS'N.

Supreme Court of Iowa.

May 24, 1901.

Appeal from district court, Polk county; C. A. Bishop, Judge.

Action in equity to secure an accounting as to the amount due on a mortgage given to defendant, and to effect redemption therefrom. By a cross bill defendant sought to foreclose its mortgage. From a decree fixing the amount due and foreclosing the mortgage, plaintiffs appeal. Modified.Dudley & Coffin, for appellants.

Bailey, Ballreich & Preston, for appellee.

WATERMAN, J.

Appellants claim the loan was usurious, and the principal question involved is the same as was determined in the case of Edworthy against this same defendant, decided at the present term (86 N. W. 315), the two actions being tried together below. Following our holding in that case, the curative act (chapter 48, Acts 27th Gen. Assem.) must be held to have conferred a right on defendant which was unaffected by the repeal of such statute.

2. There are, however, two questions involved peculiar to this case. Briggs and his wife made a mortgage on their homestead to secure this loan from the association, and the former, in addition to the mortgage, pledged his shares of stock as security. Afterwards Briggs made a personal loan from the association, for the security of which he also pledged such shares. The court, in finding the amount due, deducted “from the amount of the real-estate loan the amount paid in on the shares of stock, and the net dividends credited thereto, with interest on the amount from the date of the first failure to pay the monthly installments due, and adding thereto the amount of the stock loan,” etc. It is apparent that this method of computation includes the amount of the personal loan in the foreclosure. Plaintiffs claim the total credit should have been given on the mortgage debt so as to relieve the homestead, and that judgment should have been rendered in this action only for the balance due on the mortgage debt after such credit was deducted. This would leave the personal debt wholly unpaid; for the total withdrawal value of the shares was $710.02, as found by the trial court, and the mortgage debt, with delinquent dues, interest, and premium, was $1,196 on June 15, 1898. The payments made by Briggs were on his stock. He suggested no application of them on either loan, and the creditor made none. Under these circumstances, the money should now be applied, first, upon the debt against the homestead. Bank v. Hollingsworth, 78 Iowa, 575, 43 N. W. 536. This would leave the mortgage debt thus:

+-----------------------------------------------------------------------------+
                ¦Principal                                                             ¦$1,000¦
                ¦                                                                      ¦00    ¦
                +----------------------------------------------------------------------+------¦
                ¦Delinquent interest and premiums due June 15, 1898                    ¦121 00¦
                +----------------------------------------------------------------------+------¦
                ¦Dues and fines to same date                                           ¦75 00 ¦
                +----------------------------------------------------------------------+------¦
                ¦Total                                                                 ¦$1,196¦
                ¦                                                                      ¦00    ¦
                +----------------------------------------------------------------------+------¦
                ¦Deduct value of shares                                                ¦710 02¦
                +----------------------------------------------------------------------+------¦
                ¦Balance                                                               ¦$ 486 ¦
                ¦                                                                      ¦98    ¦
                +----------------------------------------------------------------------+------¦
                ¦To this should be added interest at 8 per cent. from June 15, 1898, to¦13 72 ¦
                ¦date of decree, October 22, same year                                 ¦      ¦
                +----------------------------------------------------------------------+------¦
                ¦Balance due on mortgage debt on date last named                       ¦$ 500 ¦
                ¦                                                                      ¦70    ¦
                +-----------------------------------------------------------------------------+
                

3. This brings us to the method of accounting by the association as to the credit to be allowed upon the shares. This matter is regulated by statute. Code, § 1898, provides: “In case of foreclosure, the borrower shall be charged with the full amount of the loan made to him together with dues, interest, premium and fines for which he is delinquent, and he shall be credited with the same value of...