Chittenden & Co. v. Gossage

Wright, Ch. J. 1. Mortgage: general judgment. [159] 2. - case explained. [158] It is in effect conceded in the argument that aside from statute one who mortgages or pledges property by way of security for the payment of the debt of another is not personally bound j?or ¿1^. that flie property is held, but not the person. Appellants rely, however, upon ch. 146 of the Rev., and especially -upon § 3662, which provides that, “If the mortgaged property does not sell for sufficient to satisfy the execution, a general execution may be issued against the mortgagee, unless the parties have stipulated otherwise.” It is not our opinion that this section was intended to apply to a case like that now before us. It contemplates a mortgage given by the debtor; and instead of leaving the mortgagee to his right to sell and dispose of the mortgaged premises, extends the remedy to an execution against the general property of the debtor. But for the statute, in such a proceeding, he could have his foreclosure and nothing more. Under the statute, when he proceeds against the debtor mortgagee, he takes judgment for the debt, not because it is secured, but because there is a personal liability; and after exhausting the property pledged by the incident, is awarded the further general [159] execution. When a third person, however, makes a mortgage simply, and does not, by its terms or otherwise, assume a personal liability, he can only be required to refund to the extent of the property pledged. It is claimed, however, that the statute received a different construet;i0I1 jn tbe case of Deland v. Mershon, 7 Iowa, 70. Some of the language there used is certainly susceptible of the view so earnestly pressed by counsel. The question now made was not, however, so distinctly made in that. Then, again, it is fairly inferable that Mershon, the mortgagor, was really one of the debtors, and personally liable as one of the firm of Mershon & Bros. This view, the writer of this opinion knows, had its influence in the determination of that case. That case is not necessarily in conflict with this, and we are not willing that language used arguendo shall be taken as concluding us upon a question so important in itself, and, as we regard, so free from doubt or uncertainty; and see McGaughlin v. O’Dourke, 12 Iowa, 459.