Gerig v. Loveland

TEMPLE, J.

This is an action to obtain the cancellation of a decree of foreclosure of a mortgage, alleged to have been had through the mistake of plaintiff, and to obtain a decree foreclosing another mortgage given to secure the same indebtedness. Plaintiff had judgment, and the defendant Dow appeals from the judgment upon the judgment-roll.

In December, 1890, defendant Loveland executed a mortgage to one L. C. Stiles to secure an indebtedness, evidenced by a promissory note due two years after date, and bearing interest.

On the thirtieth day of November, 1893, Loveland executed another mortgage to said Stiles to secure the same indebtedness. This mortgage covered all the property covered by the first mortgage and two hundred acres of land which were not included in the first mortgage. Subsequently, the note was purchased by plaintiff, and a formal assignment of the first mortgage was made t-o plaintiff and was by him duly recorded. It is alleged that the intention was to assign the second mortgage, and not the first, and that the mistake was made by the attorney, who did not know of the second mortgage, and that, through a similar error, an action to foreclose was brought by plaintiff upon the first mortgage only. A decree was entered in due form foreclosing said mortgage before plaintiff discovered the mistake. It is averred that the property described in the first mortgage is not of sufficient value to secure the debt due plaintiff.' The decree in the first action was entered January 30, 1896: plaintiff discovered the mistake August 11, 1896; this action was commenced December 9, 1896.

Appellant was made a party defendant, and it was alleged that he claimed some interest in, or lien upon, the mortgaged premises, which was subsequent and subject to the lien of the mortgage.

The defendant Dow demurred and answered, pleading in both demurrer and answer the statute of limitations. He also sets up an estoppel against plaintiff’s right to proceed with the second foreclosure.

[514]

Appellant obtained a money judgment against Loveland, which was duly docketed, and became a lien upon the mortgaged premises, subsequent to both mortgages but prior to the first foreclosure. After the entry of the decree in the first action to foreclose, appellant, as he avers, finding that plaintiff had abandoned his claim under the second mortgage and had foreclosed upon a part of his security only, caused an execution to be levied upon two hundred acres of land, upon which a foreclosure was not sought, and a sale thereof to be made> and became the purchaser thereof for the sum of five hundred dollars, which was thereupon credited upon his judgment against Loveland. If plaintiff is now allowed to foreclose upon the two hundred acres, appellant will lose this sum besides costs. Loveland has become insolvent.