Winterset Sav. Bank v. Iiams

• Decision Date: 09 December 1930
• Docket Number: 40610
• Parties: WINTERSET SAVINGS BANK, Appellee, v. L. V. IIAMS et al., Appellants
• Court: Iowa Supreme Court

233 N.W. 749

211 Iowa 1226

WINTERSET SAVINGS BANK, Appellee, v. L. V. IIAMS et al., Appellants

No. 40610

Supreme Court of Iowa, Des Moines

December 9, 1930

REHEARING DENIED MARCH 12, 1931.

Appeal from Madison District Court.--E. W. DINGWELL, Judge.

Action to foreclose two mortgages given by the defendants to secure a note to the plaintiff. The defense was a want of consideration. The trial court decreed foreclosure of said mortgages, and defendants appeal.

Affirmed.

James A. Merritt, for appellants.

Percival & Wilkinson, for appellee.

FAVILLE J. MORLING, C. J., and EVANS, KINDIG, and GRIMM, JJ., concur.

OPINION

FAVILLE, J.

On January 22, 1925, the appellants executed and delivered to the appellee their certain promissory note in the principal sum of $ 10,000, due in three years from said date. To secure the payment of said note, the appellants on said date executed a mortgage on certain described real estate, and on the 31st day of January, 1925, executed another mortgage on certain other and different real estate, to secure said note. No payments having been made upon said note, and the same being past due, this action is instituted for foreclosure of both of said mortgages.

I. Appellants contend that the appellee failed to prove the fact of its incorporation, and that said matter was put in issue by appellants' pleading, which was a denial of either knowledge or information sufficient to form a belief of the allegation alleging that the appellee was a corporation duly organized under the laws of the state of Iowa. The allegations of the answer are not sufficient to meet the requirements of Section 11208, Code, 1927, to challenge the corporate existence of the appellee, or to require proof thereof.

II. Appellants contend that the note and mortgages in question were executed and delivered without any consideration therefor. The contention of the appellants is that the said note and mortgages were given under the promise of the appellee bank that they should represent future advances in the way of loans that it was contemplated the appellant L. V Iiams would need in his business as a dealer in live stock. The record shows that, at the time of the execution of the notes and mortgages in question, the appellee held notes and obligations of the appellants for which said mortgages were given, in a sum in excess of the amount of said notes and mortgages. Certain of these obligations had been given by the appellants to...