First Trust Joint Stock Land Bank of Chicago v. Kruse

• Decision Date: 07 May 1935
• Docket Number: 42472.
• Parties: FIRST TRUST JOINT STOCK LAND BANK OF CHICAGO v. KRUSE.
• Court: Iowa Supreme Court

260 N.W. 665

219 Iowa 1229

FIRST TRUST JOINT STOCK LAND BANK OF CHICAGO v. KRUSE.

No. 42472.

Supreme Court of Iowa.

May 7, 1935

Appeal from District Court, Shelby County; H. J. Mantz, Judge.

Action in equity for judgment on note and foreclosure of real estate mortgage. From a judgment and decree in favor of plaintiff the defendant, who became owner of title to property after execution of mortgage, appeals.

Modified and affirmed.

Superseding opinion in 255 N.W. 646.

Bennett Cullison, of Harlan, and V. H. Byers, of Harlan, for appellant.

Swan Martin & Martin, of Atlantic, for appellee.

DONEGAN, Justice.

This case is now before us after reargument and resubmission upon a rehearing. The action was brought for judgment upon a promissory note and the foreclosure of a mortgage securing same. The promissory note sued upon provided for amortized payments to be made on the 1st day of January and the 1st day of July in each year. The petition alleged the corporate capacity of the plaintiff, its authority to transact business in the state of Iowa, that the defendant makers of the note in question failed to make the payment due on the 1st day of January, 1932; alleged that the plaintiff had elected to declare the entire debt due in accordance with the provisions of the note and mortgage; and asked for judgment for the full amount of the unpaid balance of the note, with interest at 8 per cent., and for costs, including an attorney's fee. The answer of the defendant, Kruse, to whom the title of the property had been conveyed after the execution of the mortgage, admitted the execution and delivery of the note and mortgage, denied generally all other allegations of the petition, and specifically denied that the allegations of the petition were sufficient to entitle the plaintiff to recover statutory attorney's fees for the reason that it did not allege that a demand for payment had been made against any or all of the defendants. Upon the trial of the case below, the trial court entered a judgment and decree in favor of the plaintiff and against the defendant makers of the note for the balance due upon the note, with interest, costs, and attorney's fees; declared the rights and interests of the plaintiff under its mortgage to be superior to the rights and interests of the defendants; and ordered that the mortgaged property be sold under special execution. No personal judgment was asked or entered against the defendant, Kruse. The defendant, Kruse, alone appealed and set out four propositions relied on for reversal.

In his argument on rehearing appellant argues and states that he relies on only two of these propositions. The two propositions argued and relied on are:

" 1. The Court erred in granting the relief prayed, for the reason that there was no evidence of any default entitling plaintiff to take advantage of the acceleration clause.

2. The Court erred in awarding plaintiff any statutory attorney fee for the reason that the petition upon its face did not allege a demand made upon a contract not matured."

Directing our attention to the first of these propositions, we find that the petition alleged that the defendants had defaulted in making the payment due by the terms of the note and mortgage on the 1st day of January, 1932, and that plaintiff had elected, in accordance with the terms of the note and mortgage, to declare the entire sum of principal and interest immediately due and payable. In his answer the defendant-appellant admitted the execution and delivery of the note and mortgage, but denied all other allegations of the petition, and he contends that this denial in his answer put in issue and placed upon plaintiff the burden of proving the allegation of nonpayment contained in its petition. Upon the trial of the case the plaintiff-appellee introduced the note and mortgage, but did not introduce any further evidence. The note contained indorsements on the back thereof showing payment of all installments to and including the installment that became due on July 1, 1931, but it contained no indorsement showing any further payments. Defendant-appellant argues that there was thus no evidence of any default in payment upon the note, because, he contends, the...