National Life Insurance v. Olmsted , 52 Iowa 354 ( 1879 )

Day, J.

, rTOTI,.,r. whennoV available. I. The demurrer to the answer was properly sustained. The answer admits the sale of the premises in question to Hamden A. Olmsted, and his assumption ^ie debt sued on. The plaintiff accepts the personal responsibility of the Olmsteds, and makes no personal demand against the defendant Eivers. The defendant having sold the mortgaged premises, subject to the mortgage, and being released from personal responsibility for any portion of the judgment which may remain unsatisfied after exhausting-the mortgaged premises, can in no way he affected by the amount of the recovery, and has no interest in the matter which will authorize him to plead any facts in reduction of the amount of recovery. He stands as a mere stranger to the proceeding. As such he can not interpose the plea of usury. Carmichael v. Bodfish, 32 Iowa, 418; Miller v. Clarke, 37 Iowa, 325.

The mere fact that the defendant Eivers has an action pending against Olmsted to set aside the conveyance to him of the real estate will not authorize Eivers to- interpose the plea of usury. That action may be determined adversely to Eivers. If it shall be so determined, all interest in, or claim upon, the property will he at an end. If the defendant had, in this action, made his answer a cross-bill, and set up the alleged' fraud in the conveyance to Olmsted, and asked that the conveyance be set aside, that Olmsted be discharged from the assumption of the debt, and that his own personal liability therefor he declared and enforced, a different question would have been presented. But we are clearly of opinion that, as the case now stands, the defendant Eivers can not. avail himself of the defense of usury.

Akfirmed.