Weil v. Churchman

i. mortgage: by^peraonsd judgment. It is claimed, and as we understand conceded, that in legal effect the instrument sued on is a mortgage. It be so regarded. Counsel for the appellee practically concede that the relation of debtor and creditor must exist between the mortgagor and mortgagee, before there can be rendered a personal judgment against the mortgagor. It is further conceded that there must exist an obligation to pay independent of, or in addition to, the property before the mortgagee can obtain such personal judgment. Both these propositions are undoubtedly correct. Chittenden & Co. v. Gossage, 18 Iowa, 157.

The only question, then, is what is the proper construction of this mortgage. The maker admits the receipt of a certain sum of money, to repay which he pledges the property. This creates in a qualified sense the relation of debtor and creditor. That is, such relation exists to the extent of the property, but not necessarily any further. The mortgage, however, provides that “if the said Michael Churchman, his heirs, executors or administrators, shall pay or cause to be paid to the said Casper Weil” certain named sums of money, then the mortgage shall be void. This is not a promise to pay, but the reservation of the right to do so. The conveyance is not absolute, but conditional. At common law it would become absolute when the condition was broken. The statute extends the right of the mortgagor to pay, notwithstanding the failure to do so at the stipulated time, until the expiration of the period of redemp*256tion after tlie foreclosure and sale. The reservation of a right or privilege of paying a debt is materially different from an obligation to pay absolutely.

Looking at the instrument as a whole, we are clearly of the opinion the plaintiff is not entitled to a judgment against the estate. Elmore v. Higgins, 20 Iowa, 250. In this respect the judgment below is erroneous .and must be reversed. In all other respects it is affirmed.

Modified and affirmed.