Tollerton & Stetson Co. v. Skelton , 118 Iowa 543 ( 1902 )

Brsnop, J.

We have set out the facts fully in the foregoing statement, because, as we think, the case is ruled by Wilson v. Felthouse, 90 Iowa, 315, and Clark v. Patton, 92 Iowa, 247. In the Wilson Case the act of the 21st General Assembly, — now appearing in the Code as section 3979 et seq., relating to levies upon mortgaged chattels, was directly under consideration. There the mortgagor, subsequent to a levy of attachment upon the mortgaged goods, made a general assignment for the benefit of creditors, and that suit was brought by the assignee against the attaching creditors. Here the suit is by a mortgagee whose mortgage was executed subsequent to bhe levy of attachment, and in that respect is identical with Clark v. Patton. In each instance the right to recover is made to depend wholly upon an act done by the mortgagor, in respect to the mortgaged property, subsequent in point of time to the levy. The same principle is applicable to each of the cases. In the Wilson Case we said: “There is not one word in the whole act for the protection of the mortgagor. We have no doubt that the mortgagee may waive any right to a deposit of the amount secured by the mortgage.” And again, referring to the statute: “Its whole purpose is to authorize an attachment or execution in such cases by paying or securing the mortgagee. It contains no provision authorizing the mortgagor to interfere with the proceeding. The case is, in effect, precisely in the same attitude that it would be if the mortgagee had expressly waived his right to payment of the mortgage, and assenting to the levy of an attachment on the property.” The conclusion follows irresistibly that the provisions of the statute requiring payment of or security for the mortgage debt are for the benefit of the mortgagee, and him alone. Although the question was not directly involved in the case, the same thought is expressed in Collins v. Gregg, 109 Iowa, 506.

There was no error in entering judgment for the defendant in this case. — Affirmed.