11 508 129 367 McDonald v. Gray. of said money belonged to the new township, and were informed that when called for it must be paid over, and that they received the same with that understanding; that the same had been demanded and refused: Held, that the action for money had and received, could be maintained against the old township, and that a demurrer to the petition was properly overruled. Judgment affirmed. MCDONALD V. GRAY. 1. SUBSCRIPTION. Action upon a subscription whereby the defendant agreed to pay to the plaintiff, who was described in the subscription as the treasurer of an un-incorporated association, a sum named, for the purpose of aiding in the erection of a church edifice for such association, Held, 1. That as the association was not a corporation, the words in the subscription describing him as treasurer thereof should be treated as surplusage, and he could maintain an action in his own name. 2. That the erection of the church edifice by the plaintiff, was a sufficient consideration to authorize a recovery. Appeal from Keokuk District Court. MONDAY, APRIL 15. Sampson & Harned, for the appellant. Patterson & Scofield, for the appellee contended, 1. That the plaintiff having the legal title to the subscription sued on was the real party in interest; The State of Iowa v Butterworth, 2 Iowa 158; Farwell v. Tyler, 5 Ib. 540; Fear v. Jones, 6 Ib. 170. 2. That the principle is well settled that loss or disadvantage to the promisee reasonably relying upon the promise is as good a consideration as benefit or advantage to the promissor; 1 l'ar. Cont. 358; Amherst McDonald v. Gray. Academy v. Cowles, 6 Pick. 427; Barns v. Perine, 1 Ker. 25; Blake v. Blake, 7 Iowa 46; Towsley v. Olds, 6 Ib. 527; Homer v. David, 12 Mass. 170. BALDWIN, J.-This suit is upon a subscription signed by the defendant and others, by which they agree to pay to the plaintiff, George McDonald, Treasurer of the congregation of Liberty, the several sums subscribed for the purpose of erecting a church edifice for said congregation. It appears that the congregation for which the building was proposed. to be built was an unincorporated association; that it had no such legal existence as would enable it to sue or be sued. The plaintiff, in his pleadings, claims that upon the strength of the subscriptions by defendant and others, the church was erected; and that in building the same certain debts were incurred, for which he became personally responsible. The questions upon which the appellant claims that the court erred in its rulings arise upon certain instructions that were given and others that were refused. The instructions asked by defendant appear to have been based upon an erroneous construction of the contract or subscription signed by him. It is assumed that the agreement was to pay the association and not the plaintiff; and that plaintiff is not the real party in interest, and could not therefore bring this suit in his own name. If this position was correct, the the instructions asked might have been applicable. But we think this not a proper construction of the agreement. The defendant promised to pay to the plaintiff, as treasurer, a specified sum for a certain purpose. The words " as treasurer" &c., the association having no corporate existence, may be regarded merely as surplusage. The subscription may also be regarded as an executory contract with plaintiff; a proposition to him to erect the church building, and a promise upon the part of the subscribers to pay their subscriptions upon a compliance by him, with the conditions of the same. The court instructed the jury that the plaintiff could recover, if, in pursuance of the terms of the subscription, Hartman v. Clarke. he had commenced the erection of a building as contemplated, and materials had been furnished, and labor expended thereon. Also that the subscription having been made payable to him, he could recover in his own name. We are unable to perceive the error complained of in this instructionIt appears from the pleadings and evidence that the building was erected; and the subscription was virtually an agreement to pay for such building. The plaintiff had the legal interest in the agreement, and the suit was properly brought in his name. Farwell v. Tyler, 5 Iowa 540; Fear v. Jones, 6 Ib. 170. It is further claimed that there was no consideration for the promise made by defendant. We hold that the agreement upon its face shows a sufficient consideration. It is also averred by the plaintiff that the building was to be erected upon the land of defendant; and that it was also upon this consideration defendant agreed to pay the amount of his subscription. Upon this allegation there was an issue, and evidence introduced, and the jury found for the plaintiff. With that finding we will not interfere. Nor do we consider that the plaintiff was required to make a demand of the defendant before the bringing of this action. Such demand however was alleged in the pleadings, and evidence introduced tending to show that it was made. Upon this point also, the finding of the jury was for the plaintiff; and we see no reason to justify us in disturbing the verdict. Judgment affirmed. HARTMAN V. Clarke. 1. FORECLOSURE OF TITLE BOND. The vendor of real estate, may treat the bond executed for the conveyance of the same as a mortgage, and may recover a judgment against the vendee for the amount due thereon, and for the foreclosure of the same, in one action, Hartman v. Clarke, Appeal from Blackhawk District Court. WEDNESDAY, APRIL 17. Poor, Adams & Cram for the appellant. Monroe for the appellee. BALDWIN, J.-The plaintiff sold to the defendant a certain tract of land, and gave him a bond for a deed when the balance of the purchase money was paid. The defendant afterwards assigned the undivided half of his interest in the bond or land purchased, to one Parker, and having failed to pay the balance of the purchase money when due, the plaintiff tendered to him a deed, and commenced this action under the provisions of sections 2094-5 of the Code of 1851, praying for a judgment for the amount due on the note, and asking that such judgment might be a lien on such lands, and for a decree ordering the same to be sold to satisfy said judgment, and to cut off the equities of the defendants therein. To this petition, defendant Clarke demurred, which being sustained, judgment was rendered thereon against plaintiff. The appellant assigns as error the action of the court in sustaining the defendant's demurrer, the first clause of which was as follows: That this was a misjoinder of causes of action in the petition, in this, that the plaintiff seeks to recover a judgment at law on the note of the defendant, Clarke, and asks that the same may be declared a lien on the real estate named in the petition; and also prays for a foreclosure of all right and title of said Clarke, and also of said Parker, in law and equity, in and to said real estate by a sale thereof. Under section 2094 of the Code of 1851, it is provided that the vendor of real estate, when part of the purchase money remains unpaid after the day fixed for payment, can compel the purchaser to perform his contract, or foreclose and sell his interest in the land. Section 2095, provides that Giltett v. Foreman, Blake & Axtell. the vendee in such cases, for the purposes of foreclosure, shall be treated as a mortgagor of the property purchased and his rights may be foreclosed in a similar manner. In the case of Pierson v. David et al, 1 Iowa 34, this court held that the design of these sections was to place the vendor and vendee in the same position, so far as related to the remedy, as the mortgagor and mortgagee in cases of express mortgage. In the case of Blair & Co. v. Marsh et al, 8 Ib. 144, the same construction is placed upon said sections. If the plaintiff and defendant, as vendor and vendee, are to be treated as mortgagor and mortgagee, as in the case of an express mortgage, then the plaintiff had a right in his petition to ask for a judgment and foreclosure in the same action. The foreclosure of a mortgage is provided for by statute, and is not a remedy purely in chancery or at law, but partakes of the nature of each; a union of the power of both jurisdictions. See Kramer v. Rebman, 9 Ib. 114. There was no misjoinder of causes of action, and the demurrer should have been overruled. The court further erred in sustaining the defendant's third ground of demurrer, as it fails to point out specifically any objection to the petition. The objection raised by the defendant, that plaintiff had failed to tender a deed prior to the commencement of the suit is not supported by the record. The judgment is reversed. 11 512 142 185 GILLETT. FOREMAN, BLAKE & AXTELL. 1. REVIEW OF EVIDENCE. The Supreme Court will not review a finding of the District Court upon evidence, when no exceptions were taken to such finding, nor a motion made for a new trial, on the ground that |