249 N.W. 131 | Iowa | 1933
The mortgage in suit was executed by the defendants Naglestad and others to Rose Pendergast. Subsequently, Herbert and Nannie J. Renshaw, joint mortgagors, conveyed their undivided interest in the real estate to the appellee Groth by warranty deed containing the assumption clause upon which the action against him is predicated. The note and mortgage were, subsequent to the date of the warranty deed, transferred to the Savings Bank of Larchwood, Larchwood, Iowa. The appellant, superintendent of banking, is the receiver of the savings bank, which at the time of the commencement of this action was insolvent. The answer of Groth denies that he ever assumed or agreed to pay any part of the mortgage which was for $34,952.75, and alleges that the provision in the deed was inserted without his knowledge or consent and that there was no consideration therefor.
Appellant, by way of reply, pleaded estoppel based upon the alleged acceptance of the deed and the payment of interest by appellee. Under the repeated holdings of this court, the decisive question is largely one of fact. It is admitted by all parties interested that the execution of the deed was preceded by a contract in writing. This contract is not before us. The deed was written by one Anderson, an officer of the Larchwood bank, and by him *250 sent to the recorder for record. When it was returned to the bank, it was placed in the private box of appellee to which he had no key. Appellee was called as a witness by appellant. He testified in chief that he never saw the deed until he received it from the bank in January, 1931, nearly seven years after its execution. The cross-examination of this witness covers a wide field.
On cross-examination, he testified that it was agreed between him and his vendor that he was not to assume or otherwise obligate himself to pay the incumbrances upon the land and that the contract so stated. The deed was prepared by Anderson at the request of one of the grantors. Appellee testified that he told Naglestad to be sure that the deed was written in strict harmony with their agreement. Naglestad was a witness upon the trial, but was unable to recall much of anything about the transaction. He was unable to state whether it was the agreement of the parties that appellee was to receive a deed to his equity in an undivided one-third interest in the property, subject to the mortgages, or whether he was to assume and agree to pay the same. His testimony throws little or no light upon the situation. The contract was lost, and neither party had a copy. Anderson, who prepared the deed, was deceased at the time of the trial. Appellee is contradicted, if at all, by only one witness. This witness testified that appellee told him several months prior to January, 1931, that he had submitted the deed to an attorney who had advised him that he was not liable to the mortgagee. The attorney thus consulted did not testify upon the trial. Appellee admitted that he talked with an attorney, but stoutly maintained that he did not then have the deed and that he never saw it prior to the time stated above. He testified that he had no key to his private box, and that when he wanted any papers deposited therein some one at the bank got them for him. This testimony is not disputed.
During the trial, appellee with permission of the court filed a cross-petition praying reformation of the deed.
Reliance of appellant is placed principally upon two propositions, that is, that the evidence of Groth as to the oral agreement and understanding between him and his grantor was inadmissible under the parol evidence rule, and that appellee is estopped to deny the validity of the covenant in the deed.
[1] It will be observed that neither the appellant nor the savings bank, of which the superintendent of banking is receiver, is a *251
party to either the written contract or the deed. They are strangers thereto. As was said by this court in Shult v. Doyle,
"is a bit of legal grace; it cost him nothing; it simply fell upon him, without effort or knowledge on his part. He is entitled to it, such as it is. He has no ground of appeal to equity either to expand it or to prevent its shrinkage."
Parol evidence of the true agreement between the parties in such circumstances has too often been held to be admissible to require discussion of the point. Peters v. Goodrich,
[2] Appellant relies upon Beeson v. Green,
According to the testimony of appellee, the first he ever knew of the clause in the deed was when it was delivered to him at the bank in January, 1931. This action was commenced in July of that year. The first demand ever made of appellee for payment was by appellant in March of the same year. Appellee at all times has denied the validity of the clause in the deed. The case is not *252
one in which the covenant was written into the deed without the knowledge or consent of the covenantee and subsequently discovered therein and ratified and confirmed as was the situation in Carney v. Jacobson,
KINDIG, C.J., and ANDERSON, MITCHELL, and KINTZINGER, JJ., concur.