Sangster v. Love

Weight, 3. It was announced in Crow b. Vance, 4 Iowa, 440, as the settled doctrine in equity, that the assignment of a promissory note, secured by mortgage, carries the mortgage with it; and that the assignee may maintain an action • upon it in his own name, to enforce the lien. And see Pope v. Jacobus, 10 Iowa, 262; Woods v. Sands, 4 G. Greene, 214; Keys v. Wood, 21 Verm. 331; Belding v. Manley, Ib. 550. In the Vermont cases it was held that if the debt secured by the mortgage be assigned, and there is no agreement to the contrary, the mortgage in equity goes with it. And further that if the mortgage is given to secure several notes, and the one first due is assigned to A. and then the other notes with the mortgage to B, A is entitled to the benefit of the mortgage. Poliowing these authorities, which are well sustained and accord with sound reason and justice, we are clear the complainant, by the assignment of the note, acquired a right to .control the mortgage to the extent of having the mortgaged property applied to the payment of his debts. To complete or perfect this right it was not necessary that the mortgage ■should have been delivered to him. [583] When it was averred in the bill, as it is, that complainant’s debt was unpaid, and that Moore & Co. had proceeded to foreclose the mortgage given to secure the notes held by each, ■without making complainant a party, sufficient was shown without reference to any allegation of fraud in procuring the decree. If Moore & Co. proceeded to foreclose the mortgage without making the holders of the other note parties, or upon the hypothesis that it had been paid, they did so at their peril, and if upon a bill subsequently filed by such holder, it should be made to appear that this note was unpaid, and that the holder was entitled to the prior lien ; the decree in favor of Moore & Co. would not conclude the equity' of the other party, and such other party would be entitled to relief independently of any question of fraud in filing the first bill. Entertaining this view, it becomes immaterial to enquire whether the allegation of fraud is sufficiently sustained by any statements of facts. It was held in Rankin v. Major, 9 Iowa 227, that where a mortgage is given to secure the payment of several notes falling due at different times, upon a foreclosure, and sale of the premises, the proceeds are to be applied to the payment of the notes in the order of time in which they fall due. The note first due is to be first paid. And see Grapengether v. Fejervary, Ib. 163; St. B’k v. Tweedy, 8 Blackf. 447. Complainant being therefore the holder of the note first due and unpaid, is entitled to b'e first paid from the mortgaged premises. The order overruling the demurrer is sustained.