Summary
In Blank v. Michael (1929), 208 Iowa, 402, 403, 226 N.W. 12, 13, 222 N.W. 385, a separate agreement was made extending the time of payment of a mortgage and a note secured thereby.
Summary of this case from James Employees Credit Union v. HawleyOpinion
No. 39217.
December 14, 1928. Opinion on Rehearing June 24, 1929.
MORTGAGES: Transfer of Property — Assumption of Debt by Vendee 1 — Extension of Time — Effect. The principle that the holder of an obligation releases the surety on the obligation by granting an extension of time of payment to the principal without the consent of the surety has no application to a case where the maker of a mortgage-secured promissory note sells the mortgaged property to a vendee who assumes and agrees to pay the note, and where the holder of the note subsequently grants an extension of time of payment to the assuming grantee without the consent of the original maker of the note.
ALTERATION OF INSTRUMENTS: Nature of Change — Extension of Time
of Payment.
NOVATION: Requisites — Affirmative Showing Required. There is no 3 such thing as an implied novation.
Headnote 1: 21 R.C.L. 1018.
Alteration of Instruments: 2 C.J., § 46, p. 1201, n. 41. Mortgages: 41 C.J., § 786, p. 735, n. 51. Novation: 46 C.J., § 46, p. 603, n. 96.
Appeal from Harrison District Court. — W.C. RATCLIFF, Judge.
Suit against mortgagors, assuming grantee, and others, to recover on promissory note and to foreclose real estate mortgage given to secure its payment. The mortgagors defend because of extension agreement between mortgagee and assuming grantee made without their consent. Decree for plaintiff. Mortgagors appeal. — Affirmed.
William P. Welch, for appellants.
D.E. Stuart, for appellee.
The mortgagors take the position that by their conveyance of the mortgaged premises the grantee assumed to pay the mortgage when due; that mortgagee, with knowledge of such agreement, extended the time of payment of the mortgage and 1. MORTGAGES: note secured thereby without mortgagors' transfer of knowledge or consent, and thereby mortgagors property: were released. This question is in this assumption jurisdiction stare decisis, adverse to of debt by mortgagors' contention. Corbett v. Waterman, 11 vendee: Iowa 86; Massie v. Mann, 17 Iowa 131; James v. extension Day, 37 Iowa 164; Robertson v. Stuhlmiller, 93 of time: Iowa 326; Iowa Loan Trust Co. v. Haller, 119 effect. Iowa 645; Herbold v. Sheley, ___ Iowa ___ (224 N.W. 781); Iowa Title L. Co. v. Clark Bros., ___ Iowa ___ (224 N.W. 774). The mortgagors further contend that 2. ALTERATION the extension agreement operated as a material OF alteration of the note and mortgage sued upon, INSTRUMENTS: and therefore invalidated them. This contention nature of is untenable. Cresco Union Sav. Bank v. Terry change: Terry, 202 Iowa 778. The mortgagors further urge extension that the extension agreement operated as a of time of novation. The mortgagors were not parties to the payment. extension agreement. As there was no express agreement to extinguish their obligation and substitute a new one, or to release them, and as in this jurisdiction such an agreement is not implied, there was no novation. 3. NOVATION: Richardson v. Short, 201 Iowa 561; Shult v. requisites: Doyle, 200 Iowa 1; Davis v. Hardy, 76 Ind. 272, affirmative 276; 46 Corpus Juris 600 et seq.; Hopkins v. showing Jordan, 201 Ala. 184 ( 77 So. 710); Fish v. required. Glover, 154 Ill. 86 (39 N.E. 1081). Compare Nelson v. Hudson, 221 Mo. App. 211 (299 S.W. 1111); Callaham v. Ridgeway, 138 S.C. 10 ( 135 S.E. 646). — Affirmed.
ALBERT, C.J., and EVANS, STEVENS, FAVILLE, and WAGNER, JJ., concur.
De GRAFF, J., dissents.
As a basis of my dissent, I urge the reasons stated in a dissent filed in Iowa Title L. Co. v. Clark Bros., ___ Iowa ___ (224 N.W. 774), cited in the majority opinion herein. The facts in the instant case are quite analogous to the facts in the Iowa Title L. Co. case, supra.