Shearer v. Mills , 35 Iowa 499 ( 1872 )

Day, J.

The demurrer was improperly sustained. The petition in the action in- Davis county alleged that the defendant had always since the execution of the note been a non-resident of the State of Iowa. Hence the note was not barred by the statute of limitations of the State of Iowa, and it did not appear upon the face of the petition that it was barred by the laws of any other State. See Moulton v. Walsh, 30 Iowa, 361.

The defendant appeared, and, instead of pleading the statute of limitations of any State, filed an agreement admitting that the debt was due and unpaid, and consenting that judgment should be entered against him thereon. The mortgage debt became merged in the judgment rendered in that action, and upon this judgment an action may be brought at any time within twenty years. Rev., § 2140. But the rendition of the judgment did not destroy the mortgage lien. This exists until the debt is paid or discharged. Hendershott v. Ping, 24 Iowa, 134.

Further, the petition in this action alleges that Mills has never, for one year, been a resident of the State of Iowa, and that by the laws of the State of Ohio, where the contract was executed, an action may now be brought. Hence, if this note had not been reduced to judgment, the petition would not have shown upon its face that the cause of action was barred by the statutes of this State or of any other, and it would not have been vulnerable to a demurrer. Moulton v. Walsh, 30 Iowa, 361; Gillet v. Hill, 32 id. 220; Rev., § 2961.

As neither the Davis county judgment, nor the note upon which that judgment was entered appears yet to be barred by the statute of limitations, and the debt still remains unsatisfied, it follows that the lien of the mortgage yet exists, at least so far as appears upon the face of the petition, and that this ground of the demurrer should have been overruled.

The third ground of demurrer is that the exhibit of the mortgage of the land in Floyd county shows that there never was any legal acknowledgment, and the record of said mortgage was no notice of the contents thereof to defendants.

This mortgage bears date May 15, 1858, and was filed for record June 16, 1858. The acknowledgment fails to state that the grantor was personally known to the officer certifying the acknowledgment.

Defendant admits that chapter 30, Laws 1858, cures the defect if operative upon this acknowledgment, which was executed intermediate the passage and the taking effect of the act. Section 2 of said chapter in direct terms applies to acknowledgments certified previous to the takvng effect of the act.

That it applies to this acknowledgment we entertain no doubt.

The remaining points of the demurrer have not been discussed, and are regarded as waived.

Eor the error of the court in sustaining the demurrer as to the first ground the judgment is

Reversed.