Huston v. Stringham

Dillon, J. i. vobb- ■ paries!12' I. On the trial, Allen, the payee of the note in suit, was introduced as a witness, and testified to the usury substantially as pleaded in the answer of the administrator of the mortgagor, whereupon the plaintiff dismissed his petition as to the administrator, and upon his motion the answer of the administrator was, against the administrator’s objection, stricken from the files. This being done, the plaintiff, pursuing the same line of attack, then moved “ to strike out the evidence of Allen so far as it went to establish the plea of usury in said administrator’s answer.” This motion was also sustained. Thereupon the administrator duly filed a verified motion to be allowed to defend, alleging that in the note and mortgage made by the intestate to Allen, there was usury; that the debt had been paid, &c.; but this motion was overruled, and said Thomas H. Stringham, administrator of the mortgagor, was not allowed to make defense. To all these rulings the [42] administrator excepted. It is our judgment that the court er.red. If Mrs. Stringham, the debtor and mortgagor, was alive, and had applied to defend, could it be contended that the court could legally refuse to allow it to be done ? Clearly not. And the fact that the mortgaged property had been sold under the deed of trust (a sale respecting the regularity and validity of which the proof in this case is silent) would not deprive her of that right. Johnson v. Monell, 13 Iowa, 302, and Murray v. Catlett, 4 G. Greene, 108, do not go to the extent of holding that in case the-mortgagor has aliened the property he cannot,' on his own application, defend against the mortgage debt, especially if there has been (as in the case at bar) no covenant by the grantee of the mortgagor to assume and pay the debt. Borum v. Fouts, 15 Ind., 50, 55. It being our opinion, then, that the mortgagor would have the right to defend, under the circumstances disclosed in this record, has her administrator an equal right? That the administrator in this State would have such right, is substantially ruled in Darlington v. Effey, 13 Iowa, 177. We need not restate the grounds of that decision, and content ourselves with simply referring to it. Whether Seeley (the purchaser at the trustee’s sale) could object to the plaintiff’s dismissal of the case as to the administrator, and to the rendition of a decree of. foreclosure against him (Seeley) or the property, after the administrator had ceased to be a party, we need not decide. What we hold is, that the administrator had the right to defend, and that the court erred in depriving him of that right. Seeley, although not liable personally for the plaintiff’s debt against Mrs. Stringham, would, nevertheless, be entitled to the benefit of any reduction that might be made in its amount, by the administrator. [43] 2__usury: parS.t£t3: [42] II. Having-arrived át this conclusion, it results that the [43] judgment must be reversed. We do not, therefore, deem it necessary to enter into detail as to the testimony respecting the amount of payments claimed to have been made, or rents and profits collected from the mortgaged estate by the plaintiff or his agents. Under the decisions of this State, Seeley cannot, a subsequent purchaser merely, plead usury. But he may show that the debt has been paid wholly or in part by Mrs. Stringham, or from rents collected from the mortgaged estate. Under proper pleadings he could hold plaintiff liable for neglect to collect the leases assigned to him, if by due diligence the amount thereof could have been made. j._appli. payments, By foreclosing his mortgage of May 28, 1856, for the full amount thereof, without giving any credits for rents collected, we think .the District Court was right in holding that prima facie, at least, he must be taken to have elected to apply all amounts received as rents upon the mortgage now in suit. i mobt íeases. Whether he can make out a case for the ratable apportionment of the rents collected to the mortgage now in suit and to that of May 28, 1856, we have no data upon which to express our opinion. It follows that we are of opinion, as was the District Court, that the plaintiff having received an assignment of the leases made with the tenants of thmortgaoed estate, under an agreement to collect the rents and apply them on his two mortgage debts, he must so apply them and cannot refuse to do so on the ground- that the rents and profits thus received, belong to the. heirs and not to the administrator. As to these leases he would, on the one hand, have the right, and, on the other, could be compelled to apply the amounts received on the mortgage debt; Besides, under the plaintiff’s own allegations, the estate is insolvent, and the husband was an heir as well as an administrator. [44] 6 Ired. (Eq.), 336; 10 Barb., 247; 11 Ill., 171; 23 Texas, 539; Sandford v. McLean, 3 Paige, 117. s. attob: ““upoB1™® appear, III. In regard to tbe plaintiff’s appeal-: "We perceive no error in the action of the court respecting the question of the authority of Williamson, the attorney, to appear for the administrator. On plaintiff’s motion, made years after the answer had been filed, tbe court required Williamson to show his authority to appear for the administrator. This Williamson did by an affidavit, and by producing a general power of attorney. The record recites tbat tbe court was satisfied by the showing made. Neither the affidavit nor power of attorney is in tbe record. Without these, before us, we cannot say tbat tbe court erred in refusing to receive tbe proposed counter testimony as to Williamson’s authority. Tbis is a matter of practice, and conceding that tbe court is not conclusively bound by tbe attorney’s oatb tbat be bas authority, but may inquire beyond tbat, yet sucb facts may have been shown by the attorney’s affidavit (not before us), as to have fully satisfied the court of the existence of the attorney’s authority, and that the circumstances offered to be shown to disprove tbat authority were immaterial, or at least inconclusive. The decree is reversed and a trial de novo awarded. Reversed.