Harrington v. Christie , 47 Iowa 319 ( 1877 )

RoTnKOCK, J.

i. mortgage: payment-1 forfeiture. I. It will be readily seen, from the foregoing statement of facts, that the plaintiff was not entitled to the amount secured by the first mortgage, and alsodhe $500 secured by the second mortgage.. The failure to pay the taxes without lawful excuse might entitle her to proceed to a foreclosure of the other claims, but she should have elected when she commenced her action whether she would take the land and the $500 and the claim for taxes, or refuse to take these and proceed to foreclose for the amount due on the first mortgage and the claim for taxes secured by second mortgage. As she did not elect which she would take, but insisted on both, we think the court properly held that she could not recover more than the amount of taxes she had paid:-

II. We may say further, upon the question of fact as to the ■ waiver of payment of the claim for taxes on the day on which it became due, that the action is not triable anew in this court, and there is no such want of evidence to sustain the finding of the court as would warrant our interference.

2 pleading: amendment. III. After the cause was submitted to the court, plaintiff asked leave to amend her petition by an averment that the def©ndant had not paid the annual interest due on ^he $goo note. The court refused to allow the amendment to be made. We are unable to say from the record before us that this was an abuse of discretion. It was not a mere amendment to make the pleading correspond with the proof. It was a material allegation upon which the defendant would have had the right to take issue. There may have been good reasons for refusing to allow an amendment of this character after the cause had been submitted to the court.

Affirmed.