Schoonmaker v. Taylor

By the Court, Paine, J. It is well settled that where several instruments are executed together as parts of the same transaction, they are all to be considered in determining what the agreement was. There can be no doubt that this principle is applicable to a bond and mortgage executed to secure a debt. And the provision in the mortgage giving the mortgagee the option to oonsider the whole sum due on de [316] fault in any payment, must be considered a part of the agreement though not contained in the bond. The nature of the provision, which is somewhat severe and penal in its character, cannot change the rules by which it is to be determined whether or not it was really a part of the agreement. Kennion vs. Kelsey et al., 10 Iowa, 443. The notice of the election of the mortgagee to consider the whole sum due, is sufficient. Though it is signed by the plaintiff by her agents, it could not have been necessary to have shown on the face of it proof of their authority. And we do not think it was necessary that the notice should be served on the wife. She was not the debtor. And although the mortgage was on the homestead, and her signature necessary to its validity, yet that does not connect her personally with the debt, any more than in any ordinary case where the wife signs a mortgage securing her husband’s note or bond. It is as though a demand of the debt had been necessary. In such case it would clearly be sufficient to demand it of the debtor. So a notice which relates merely to the debt, is sufficient if served on the debtor. The wife is made a party to the foreclosure, so that her right of redemption is not cut off without an opportunity to pay if she desires. The judgment is reversed, with costs, and the cause remanded with directions to enter judgment for the plaintiff.