
    Van Gorder v. Lundy et al.
    1. Mortgage: SALE Off LAND: AGREEMENT TO PAY FIRST MORTGAGE: SECOND MORTGAGE FOR PURCHASE MONEY: FORECLOSURE OF SECOND MORTGAGE, AND JUDGMENT FOR MONEY DUE ON BOTH: PAYMENT OF judgment : redemption : equities Off parties. In 1831 L. mortgaged his land, and in 1882 he sold it toF., who assumed the payment of the mortgage, and made to L. a second mortgage for balance of purchase price. L. foreclosed his mortgage, and obtained judgment against F. for the amount clue on both mortgages, and the land was sold to L. on execution, but for enough only to pay so much of the judgment as was based on the mortgage of F. to L. The residue of the judgment L. assigned to Gr., to whom F. paid it under protest. L. assigned his certificate of purchase to M., who in turn assigned it to J. D. & Co. F, afterwards paid to the clerk the amount necessary to redeem from the sale, upon condition that it be applied to’ the payment of the first mortgage, for the foreclosure of which this action was then pending, — F. being a defendant in the action, and by cross-petition asking for appropriate relief in the premises. Held that plaintiff, the holder of the first mortgage, was entitled to judgment against L. and decree of foreclosure thereon; that F. was entitled to have the money in the hands of the clerk applied, so far as necessary, to satisfy such judgment, and that the residue of the money should be paid to J. D. & Co., the holders of the certificate of purchase, and that the certificate should be canceled.
    2. -•: CERTIFICATE Off PURCHASE AT FORECLOSURE SALE: NOT NEGOTIABLE. A certificate of purchase at a mortgage-foreclosure sale is not negotiable, but it may he assigned, subject to prior equities against the assignor.
    3. -: FORECLOSURE: PRESUMPTION Off OWNERSHIP FROM POSSESSION Off papers. Where the plaintiff in an action to foreclose a mortgage has the notes and mortgage in his possession, and introduces them in evidence, this is presumptive evidence of ownership, and is ordinarily sufficient.
    4. Injunction Bond: who may sue on: party beneficially interested. A person for whose security an injunction bond musthave been intended may maintain an action thereon, though it be not payable to him. Code, § 2552.
    
      Appeal from Audubon District Court.
    
    Monday, June 8.
    Action to foreclose a mortgage. The plaintiff and the defendants, Jones, Dickey & Oo. appeal.
    
      
      L. L. Delano, for plaintiff.
    
      Holmes, Hash dk Phelps, for E. S. Foster.
    
      Smith McPherson and Griggs de Adams, for Griggs & Lundy.
    
      Hourse c& Kauffman, for Jones, Dickey & Go.
   Seevers, J.

As between plaintiff and Jones, Dickey & Co. there is n'o serious dispute as to the facts. In 1881 the cfofondárd Lundy executed a mortgage on real estate> which the plaintiff seeks to foreclose in this action, which will be designated as the Lombard mortgage. In 1882 Lundy sold and conveyed the mortgaged property to the defendant ' o o r i ./ Foster, who agreed, as part of the consideration ' ° * x or Purchase money, to pay the Lombard mortgage> an<^ for the residue of the purchase money Foster executed a mortgage to Lundy. The latter commenced an action to forclose his mortgage, and therein sought to recover of Foster upon his- agreement to pay the Lombard mortgage. The holder of the Lombard mortgage was not made a party to this action, and, Foster having made default, judgment was rendered against him for the amount due on the Lundy mortgage, and also for .the amount due on the Lombard mortgage, and the real estate was ordered to be sold on special execution to satisfy the judgment. Such an execution was issued and the premises sold to Lundy for, as we understand, the amount due on his mortgage. A certificate of purchase was issued to Lundy, which he assigned to defendant Morrow, who assigned the same to Jones, Dickey & Go.

It will be observed that Lundy obtained a judgment against Foster for the amount due on the Lombard mortgage. This portion of the judgment was not satisfied by the sale of the real estate, and Lundy assigned that portion to the defendant' Griggs, to whom Foster, under legal compulsion, paid the same. Within the period allowed to redeem from the sale to Lundy, Foster paid to the clerk the amount required to redeem from such sale, upon condition that it be applied to the payment of the Lombard mortgage, and if it could not be so applied, Foster reserved the right to withdraw said money. This action was pending at the time the money was so deposited, and Foster by his answer and cross-petition asked appropriate relief. The court rendered a judgment in favor of the plaintiff for the amount due on the Lombard mortgage, foreclosed the same, and found and determined that Foster had redeemed from the sale to Lundy, and that the money paid to the clerk, or so much as was necessary, should be applied in payment of the Lombard mortgage, and the residue was directed to be paid to Jones, Dickey & Co. The certificate of sale was canceled.

I. It is undoubtedly true that the validity or priority of the Lombard mortgage was in no manner affected by the foreclosure of the Lundy mortgage and the sale of the real estate under the decree of foreclosure. As between Lundy and Foster, the former was not entitled to recover a judgment for the amount due on the Lombard mortgage; but, conceding that he was, he was not entitled to the money when the judgment was paid. In equity it belonged to the holder ■of the Lombard mortgage, and Lundy could have been compelled to so apply it. The judgment, however, was valid on its face, and Foster was compelled to pay it to Griggs, to whom Lundy had assigned the judgment. That money, therefore, could not, because of such assignment, be applied to the payment of the Lombard mortgage, or if it could it was not .so done. This being so, the burden in equity to pay the Lombard mortgage was shifted from Foster to Lundy, and .the latter, as between them, became primarily liable; and, as the Lundy mortgage has not been paid, Foster has the right in equity to apply that money, which would otherwise be due Lundy, to the payment of the Lombard mortgage.

It is immaterial how the money due on the Lundy mortgage was paid. It may be said that the mortgage was satisfied by the sale of the land; but Foster had the right to redeem from the sale, and, as between Lundy and Foster, the former had no right to the money paid in redemption until the Lombard mortgage was paid. Foster had the right in equity to have it so applied, for the simple reason that he had paid the amount of the Lombard mortgage to Lundy or his assignee. It seems to us that-the equity of Foster is exceedingly strong and pursuasive as between him and Lundy. Such equity arose at least as early as March 10,1883, at which time Lundy converted to his own use, by means of such assignment, money which Foster had agreed to pay, and which he had the right to have applied on the Lombard mortgage.

II. It is conceded that the certificate of purchase was not negotiable, but it was assignable, subject to such equities as existed between Foster and Lundy at the time it was assigned by the former, which was in December, 1883. It, however, did not become the property of Jones, Dickey & Co. until January, 1884. Counsel for Jones, Dickey Co. insist that the certificate was property, and that it was valid in the hands of Lundy, and that he had the right to sell and assign it. This is undoubtedly true; but, as we have said, there was attached to it ah equity which Lundy was bound to recognize, and, as it was not negotiable, Jones, Dickey & Co. got by the assignment precisely what Lundy had, and nothing more. By the assignment it became the property of Jones, Dickey & Co., subject, however, to the equity which had attached prior to the assignment by Lundy. It is also suggested by counsel that a redemption from a sale on execution, to be valid, must be unconditional. We deem it unnecessary to determine this question, for the reason that, prior to the deposit of the money with the clerk, an agreement was entered into between the plaintiff, Foster, and Jones, Dickey & Co., which clearly recognized the right of Foster to deposit the money, subject to the conditions attached.

III. Counsel for Lundy insist that plaintiff was not entitled to recover a judgment against him, or to have.the mortgage foreclosed,-because it does not appear that the plaintiff was the holder of the notes and mortgages secured thereby. The plaintiff had the notes and mortgages m his possession, and he introduced them in evidence. This is presumptive evidence of ownership, which, ordinarily, is sufficient. The signature of John W. Gest was sufficiently denied under oath, but how or in what manner it became material to prove that this signature was genuine, we are not advised. Neither the notes nor mortgages are set out in the record, but they were given, as we understand, to James L. Lombard; and when the mortgage was offered in evidence, the only objection made was that it was immaterial and incompetent. This objection was rightly overruled, and when the notes were offered, the objection was that there was “nothing to show on the instrument, either by assignment or otherwise, that the plaintiff is the owner and holder of the same.” But the evidence satisfactorily shows that the plaintiff purchased the notes and mortgages, and that they were his property. This was sufficient to enable him to recover.

IY. The defendant Griggs pleaded a counter-claim, based on the fact that Foster had caused to be issued an injunction restraining any proceedings under the execution issued to enforce that portion of the judgment which had been assigned by Lundy to Griggs, ippg injunction was dissolved^ and Griggs sought to recover the damages sustained, by reason of its issuance, of the plaintiff, who signed the injunction bond as surety for Foster. The court held that he was entitled to recover, and awarded him damages in the sum of $125. We think Griggs was entitled to maintain an action on the bond. The judgment belonged to him, and he was the only person who suffered any damages by the issuance of the injunction. The bond, although not payable to him, must have been intended to secure to him such damages as he sustained. Code, § 2552.

We have examined the evidence, and unite in the conclusion that the amount allowed by the court is correct. Jones, Dickey & Co. must pay two-thirds, and the plaintiff one-third, of the costs in this court. The judgment of the circuit court on both appeals is

Affirmed.  