Brown v. Cascaden

Beck, J. The mortgage, which is the foundation of this action, was executed in Ontario, and conveys lands, situated in that province, to secure the payment of $971.75 to the mortgagee named in the instrument, by whom it was assigned and transferred to plaintiff by proper writing. Among other covenants, the following appears in the mortgage: “And the said party of the first part (the mortgagor) covenants with the said party of the third part (the mortgagee), that he will pay the said mortgage money and interest on the days and times •aforesaid.” The petition declares on the mortgage, and contains proper averments of the transfer to plaintiff, the failure of defendant to pay the money secured by, and covenanted to be paid in, the instrument. Upon the trial, plaintiff offered in evidence the mortgage [105] and assignment, -which, upon objection by defendant, were not admitted, on the gi-ound that an action at law could not be brought thereon. No other evidence being offered, the court dismissed the action. The ruling of the court in refusing to admit in evidence the mortgage and assignment, and the judgment dismissing the case, present the only question discussed in the argument of appellant. i mortgage • covenant. The covenant found in the mortgage is for the payment of the money mentioned therein. It is no part of the conditions ^ instrument, and in no way pertains to the conveyance of the land. It is not a covenant securing the mortgagee against the failure of the title or warranting possession and enjoyment of the land. It is simply an obligation binding the mortgagor to pay the money. "We know of no rule of law which will invalidate such a covenant, when found in a mortgage. If valid and binding upon defendant, no reason can be given why an action cannot be maintained upon it. _-action-practice. A mortgagee is not confined to his remedy of foreclosure of the mortgage; he may bring his action at law upon the note, bond or other obligation for the money, which is secured by tire mortgage. Banta v. Wood, 32 Iowa, 469; Knetzer v. Bradstreet, 1 G. Greene, 382; 4 Kent’s Com., 183. Chancellor Kent, in Dunkley v. Van Bwren et al., 3 Johns. Ch., 320, says: “It seems to be generally admitted in the books that the mortgagee may proceed at law on his bond or covenant, at the same time that he is prosecuting on his mortgage in chancery; and, after foreclosure, may sue at law on his bond for the deficiency.” -■ If the covenant or obligation is found in the mortgage, the suit at law may be based thereon. The language of Chancellor Kent applies to such a case. 4.-: conpraeciee! ‘ If separate suits are brought upon the covenant for the payment of the money and on the mortgage, the plaintiff must elect which to prosecute. The other will be confirmed. Code, § 3820. This provision contem [106] plates an action at law to recover the money secured by the mortgage. Bsnta v. Wood, supra. These familiar provisions and principles of the law lead us to the conclusion that plaintiff’s action was properly brought upon the covenant for the payment of the money found in the mortgage, and that instrument, as well as the assignment thereof, should have been admitted in evidence. Other questions presented in the assignment of errors are not discussed in the argument of plaintiff’s counsel; we are required to regard them as waived. Reversed.