Stern v. Rainier
| Decision Date | 04 April 1922 |
| Docket Number | 34403 |
| Citation | 187 N.W. 442,193 Iowa 665 |
| Parties | ALMOR STERN, Appellee, v. FRANK RAINIER et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.--GEORGE W. CULLISON, Judge.
ACTION to foreclose real estate mortgages. The trial court granted the relief prayed for by plaintiff and entered a decree of foreclosure. Defendants appeal.
Affirmed.
Bolter & Murray, for appellants.
Robertson & Havens, for appellee.
DE GRAFF, J.
The petition is in two counts. The first count seeks to foreclose a $ 500 mortgage on the ground that the defendants have failed and neglected to pay on due date the notes and interest secured by said mortgage. The second count seeks to foreclose a $ 20,000 mortgage given to secure the payment of twelve promissory notes aggregating that amount on the ground of the failure of defendants to pay the amount due on the $ 500 prior mortgage according to the terms of which the said $ 20,000 mortgage became due and payable.
Three mortgages were outstanding against the real estate in question. The first mortgage was in the sum of $ 20,000 and payable to the Iowa Loan & Trust Company. With this mortgage this appeal is not concerned. The $ 500 mortgage was a commission mortgage given to the plaintiff in this cause. The third or $ 20,000 mortgage represented a part of the purchase price of the real estate.
It was stipulated and agreed in the $ 500 mortgage that "any failure to pay any portion of the money hereby secured, * * * then in any of said events, the entire sum of all of the notes hereby secured shall at once become due and payable and suit may at once, at the option of the holders hereof without notice to us, be brought to foreclose this mortgage."
It is provided in the third or $ 20,000 mortgage, which is junior and inferior to the lien of the $ 500 mortgage, that "if the indebtedness secured by the prior mortgage on said premises hereinbefore referred to, shall, by any of the terms, conditions or stipulations in said mortgage hereinbefore referred to, become due and payable, then, in any of said events, the entire sum of all the notes hereby secured shall at once become due and payable, and suit may at once, at the option of the holders hereof, without notice to us, be brought to foreclose this mortgage."
It was also stipulated in the third or $ 20,000 mortgage that when the first mortgage loan in the sum of $ 20,000 became due that the legal holder of the third mortgage shall waive, and release, if necessary, in order to allow first party the right to renew or place a new loan on the land, but not to increase in any way the prior indebtedness. This event did not happen and consequently the right of renewal or waiver is not before us.
It does appear that the first note secured by the $ 500 mortgage was paid, but the second of the notes secured by said mortgage was not paid...
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