Struman v. Robb

Cole, J. In our opinion, the demurrer should have been overruled. The facts constitute an equitable defense pro tanto. Such a defense may be pleaded in the circuit court. Hackett v. High, 28 Iowa, 539; Walker v. Kynett, 32 id. 524. To the extent of the judgment recovered by Stone against this plaintiff upon the note replevied, and for which replevin these defendants became sureties, the right to a set-off in equity cannot, it seems to us, be well doubted. Ballinger v. Tarbell, 16 Iowa, 491. Whether this right of set-off would extend to the whole judgment, or only to that amount remaining after satisfying the attorney’s lien thereon, we ought not now to decide. See Hunt v. Sheets, 21 Iowa, 501. The right in equity to have the stock of hardware, etc., also applied to the satisfaction of the indebtedness for which these defendants, sureties, are liable, seems to us equally clear. The ground upon which we rest the opinion is this: The plaintiff seized the property under an attachment; these defendants, by becoming sureties for the replevin, placed their bond as surety to the plaintiff, instead of the property. Now, he may have the property sold and take the value, and have his remedy on the bond for the balance, or he may leave the property to the sureties and have full remedy on the bond; but he may not, under the facts stated, appropriate the property to another use, and hold defendants on the bond also. Reversed.