Diamond v. Jones , 76 Iowa 422 ( 1888 )

Beck, J.

— I. The petition is in the following language: “Plaintiff states .that on or about July 1, 1884, he borrowed from defendant the sum of about seven hundred dollars, and gave his note for about $1,150, that being the nominal amount of the loan ; that said actual loan of about seven hundred dollars was renewed from time to time, in such nominal sums as defendant demanded, sometimes in' his own name, and sometimes in the name of ‘ M. S. Leonard,’ or the name of ‘ N. J. Dustin,’ giving real estate and chattel security therefor; that the last of these nominal renéwals was on or about September 3, 1885, in the name of ‘ N. J. Dustin,’ nominally, for some $1,537.66, for security for the payment of which a mortgage was given to defendant, in the name of said ‘if. J: Dustin,’ on the northeast quarter, and the northwest quarter of the southeast quarter, of section 8, township 73 north, of range 36 west of the fifth P. M., and at the same time a chattel mortgage was made to the said Dustin as another security for the said pretended sum of $1,537.66, which fell due on or about March 1, 1886; that on or about March 10, 1886, defendant, under pretense of a sale under said chattel mortgage, sold the chattels in the said mortgage described, obtaining therefor the sum of about $44.30 in cash, and also the notes of various purchasers at said sale in the sum of about $772.05, all of which belonged to this plaintiff, and the defendant tlien and there, yet acting in the name of Dustin, took and converted the same to his own use ; that afterwards, about October 19, 1886, the defendant, in the name of the said Dustin, foreclosed the real-estate mortgage, made at the date'of the last chattel mortgage to secure the said pretended sum of $1,537.66, taking judgment by default for $1,106.39, with $46.68 attorney’s fees, and $9.30 costs, or more than the only loan, and the only sum ever, received, to-wit, seven hundred dollars, with interests, attorney’s fees, and costs, and has sold the said described mortgaged premises, and has bought the same in payment for said judgment and accruing costs, and yet keeps the proceeds of the said chattel mortgage sale, in the sum of about $816.33, and has converted the same to his own use, to the damage of the plaintiff in the sum thereof, with six per cent, interest from March 10, 1886, — for all of which plaintiff demands judgment, with interests and costs.” The demurrer is on the grounds: (1)- The petition shows that the action is to recover for usury. (2) The subject of the action is shown to have been adjudicated in the action of foreclosure referred to in the petition.

II. It cannot be denied that the cause of action is not clearly set out in the petition, and that the pleader has been unfortunate in stating the cause of action. But we think the action was not brought to recover for • usury paid; certainly not for usury eo nomine. Nor does the petition show a. former adjudication of the subject-matter of the action. It alleges a foreclosure of the mortgage, but there is no allegation of any adjudication as to the amount found due thereon, or as to the chattel mortgage and the sum due upon it.

III. As we understand the petition, we think it sufficiently shows a cause of action arising upon the facts alleged, — that plaintiff collected both the real-estate mortgage and the chattel mortgage, which were both given in security of the same debt, and appropriated the money realized upon, both securities, thus receiving more than was due upon the debt; and to recover the amount received in excess thereof this action is brought. It is a case of the creditors collecting the full amount of two securities given upon one debt, the aggregate of which exceeds the amount of the debt. We think the petition is not obnoxious to the demurrer. But plaintiff may be required to state, with .more explicitness and directness, his cause of action before the case is again submitted for trial. It is our opinion that the judgment of the district court ought to be

Reversed.