Brown v. Smith

• Decision Date: 21 December 1888
• Citation: 41 N.W. 27,76 Iowa 315
• Parties: BROWN ET AL. v. SMITH ET AL.
• Court: Iowa Supreme Court

76 Iowa 315

41 N.W. 27

BROWN ET AL.

v.SMITH ET AL.

Supreme Court of Iowa.

Dec. 21, 1888.

Appeal from district court, Wright county; D. D. MIRACLE, Judge.

Action by C. H. Brown & Sons against Clara C. Smith and Annette Morrison, to foreclose a mortgage. Upon a trial on the merits plaintiffs' petition was dismissed. They appeal to this court.Aaron Yearous, for appellants.

BECK, J.

1. The debt secured by the mortgage amounts to $45.77, with interest at 10 per centum per annum from August 3, 1882. The petition prays for judgment for the amount of the debt, and for a proper decree enforcing the mortgage lien. No certificate was given by the judge of the district court pending the case here, for the decision of questions certified. The amount in controversy being less than $100, we cannot take cognizance of the case, in the absence of such certificate.

2. The plaintiff claims in this action to foreclose the mortgage. The mortgage confers on the mortgagee no such interest in the land as is contemplated by Code, § 3173; which provides that the limitation upon appeals prescribed therein shall not affect a case wherein is involved an interest in real property. A mortgage under our statutes and decisions conveys no interest or title in real property. It simply creates a lien thereon. A case involving the enforcement of a lien for less than the sum limited in section 3173 cannot be brought to this court without the certificate therein required. Andrews v. Burdick, 62 Iowa, 714, 16 N. W. Rep. 275;Colyar v. Pettit, 63 Iowa, 97, 18 N. W. Rep. 694;Johns v. Pattee, 61 Iowa, 393, 16 N. W. Rep. 280. In the absence of the certificate, we have no jurisdiction of the case. It is therefore dismissed.