McClure v. Burris

The conclusion of the Court was announced by—

This case involves the identical question decided in the case of The Bank of the State of Indiana v. Anderson and others, 14 Iowa, 544. The decision in that case was made by a majority of the court as then constituted, Mr. Justice Lowe, who still adheres to the same opinion, dissenting. As an original question, it is full of difficulty. In behalf of the plaintiff McClure, it may be said that his right is clear, under the well recognized rule that where the equities are equal the prior legal right shall prevail. While the- defendants, Beatty & Clement, may with like confidence claim the application of an equally,well, settled rule, that when one of two innocent parties must suffer by the wrongful act of .a third person, he must suffer who placed (or.left) it in the power of such third, person to do the wrong. *593McClure has equal equity and the prior legal right, while by his failure to take an assignment of the mortgage, and have the same duly acknowledged and recorded, he placed (or left) it in the power of Bur-, ris to do the wrong. However, the two new members of the Court, as now constituted, might view the case as an original question, they content themselves with obedience to the doctrine of stare decisis. The later cases accord with that in 14th Iowa. The Executors of Swartz v. List, 13 Ohio S. R., 419 (decided in 1862); Ely v. Scofield, 35 Barb., 330. Affirmed.