141 Iowa 255 | Iowa | 1909
The two defendants first named in the title of the case executed the mortgages foreclosure of which is asked, and the. other defendants claim liens on the property covered by such mortgages superior to the lien of the plaintiff under one of them, and to avoid circuity in description George S. Smith and his wife will be referred to as mortgagors, and the other two defendants named in the title of the action will be referred to as defendants. In 1903 the defendants recovered several judgments against the mortgagors, and in 1904 instituted their action to have a conveyance of property by mortgagors set aside, and the property subjected to the payment of their judgments, and in February, 1905, the relief prayed for was granted to them, and the lien of their judgments established as against the mortgagors and their grantee. ' The description of the property in this decree was as follows: “Commencing at a point on the east iine of South Main Street, 148 ft. south of a point 2 rods south of the north line of the northeast quarter of the southwest quarter of Sec. 22 Twp. 72 B. 17; thence south 198 feet; thence east 17 rods; thence north 198 feet; thence west to the place of beginning.” After the rendition of that decree, the present action was brought to foreclose two mortgages given on the same property by the mortgagors above referred to, the first to the Farmers’ & Miners’ Savings Bank of Monroe County, duly assigned to plaintiff, and the second executed to plaintiff directly with a reference making it subject to the first. It was also asked that the description in these two mortgages be
There are two grounds for holding that defendants were charged with notice of the second mortgage, although
The decree of the lower court so far as it declared the second mortgage — that is, the mortgage executed directly to plaintiff — to be subject to the lien of defendants under their prior decree and refusing the correction of the second mortgage as against said defendants so .as to make it appear of record that it covered the land in controversy, was erroneous, and the case is remanded to the lower court for modification of the' decree in accordance with this opinion, unless plaintiff elects to have entered in this court such modified decree as he is entitled to under the facts. As appellant secures the relief sought in his appeal, the costs are taxed to appellee. — Modified and affirmed.