Marble Sav. Bank v. Mesarvey

• Decision Date: 10 February 1897
• Citation: 70 N.W. 198,101 Iowa 285
• Parties: THE MARBLE SAVINGS BANK v. W. D. MESARVEY, et al., Defendants, and A. H. NEEB AND JOHN F. KEEFNER, Appellants
• Court: Iowa Supreme Court

70 N.W. 198

101 Iowa 285

THE MARBLE SAVINGS BANK v. W. D. MESARVEY, et al., Defendants, and A. H. NEEB AND JOHN F. KEEFNER, Appellants

Supreme Court of Iowa, Des Moines

February 10, 1897

Appeal from Polk District Court.--HON. W. A. SPURRIER, Judge.

THIS is an action in equity for judgment on a note, and for the foreclosure of a mortgage securing it upon certain real estate. The note was executed by the defendant, W. D Mesarvey, to the Lewis Investment Company, was for two thousand five hundred dollars, dated September 15, 1888, and due five years thereafter, and drew interest. The mortgage was executed by said Mesarvey and wife upon a certain tract of ground in the city of Des Moines, Iowa. The note and mortgage were transferred to the plaintiff by the Lewis Investment Company. May 2, 1893, the defendants and appellants, Neeb and Keefner, purchased the real estate described in the mortgage, and, as a part of the consideration or purchase price of said property, assumed and agreed to pay said mortgage; said obligation being embraced in the deed to them from one S. S. Smith and wife, and being in these words, viz.: "Subject to a mortgage of two thousand five hundred dollars, given to the Lewis Investment Company, which the grantee herein assumes the payment of." Personal judgment was asked against Neeb and Keefner, also a decree of foreclosure of the mortgage. The defendants filed no answer and made no appearance. On the trial, the plaintiff introduced its note and mortgage in evidence, also the warranty deed from Smith and wife to these defendants and appellants, which contained the clause above mentioned. A personal judgment was rendered against Neeb and Keefner, and a decree of foreclosure was entered as against them and other defendants. Thereafter Neeb and Keefner appealed from said judgment and decree.

Affirmed.

Berryhill & Henry for appellants.

Lewis & Royal for appellee.

OPINION

KINNE, C. J.

I.

There is a contention as to the right of appellants to have the question raised considered. As we have arrived at the conclusion that upon the merits, the case should be affirmed we do not consider the point made, but treat the question as properly before us for determination.

II. If the evidence showed that appellants' grantor had purchased the real estate upon which the mortgage rests which is foreclosed in this case, from the mortgagor, under an obligation to pay the mortgage debt, or if it appeared that all intervening purchasers of said premises had assumed and agreed to pay the mortgage debt, appellants, we take it, would not question the right of appellee to recover a personal judgment against them upon their agreement to pay this mortgage. The controversy arises over the fact that it is not shown that intervening purchasers of the land had assumed the payment of this debt, nor that appellants' grantor was in any way obligated to discharge said indebtedness. No case decided by this court is called to our attention, wherein the facts involved were like those in the case at bar. A somewhat extended examination of the decisions in other jurisdictions, as well as an investigation of the law as laid down by leading authors, reveals the fact that there is much disagreement as to the grounds upon which one who is not primarily liable to pay the mortgage debt, but purchases...