Reeder v. Carey

Wright, J.1 It seems to us that the principles recognized in Grapengether v. Fejervary, 9 Iowa, 164, Rankin v. Major, Id., 297, and Sangster v. Love, 11 Id., 580, sustain appellant’s position, and that the decree below should be modified accordingly. The fact that notes were not executed by the mortgagee, and that the only evidence of indebtedness is the mortgage, cannot change the rule. The complainant held and owned the amount first due, ($157.50,) and this should be first paid. The remaining proceeds, if any, should be applied pro rata to the satisfaction of the claims held by the parties in the last payment. It is proper to say that this is a controversy between-the assignees of debts secured by the mortgage, and not between the mortgagee and the assignee of a part of the debt, as in [276] The Mechanics' Bank v. The Bank of Niagara, 9 Wend., 410. Not only so, but there the court held tbat tbe parties bad by agreement given priority to tbe assignee. Decree modified as above, and entered in this court, if desired. Footnotes [1] Lowe, X, being interested took no part in the determination of this cause.