128 Iowa 1 | Iowa | 1905
This action in equity was begun for the foreclosure of a mortgage and other relief. The claim of the plaintiff is based on the following alleged facts, which, to avoid confusion, are separately stated and numbered:
(1) On January 7, 1897, William G. Watters and Mary Watters made the note and mortgage in suit to A. A. Carter; the mortgage being duly filed for record on the same day.
(2) On October 5, 1897, the Second National Bank of
(3) On October 14, 1897, the plaintiff herein recovered two several judgments in the same court against the said Mary Watters and William G. Watters for the aggregate sum of $8,034.03 and costs.
(4) On November 29, 1897, the Excelsior Brassworks, the principal defendant in the judgment first named, transferred all its assets in trust to Sidonia Hosford, for the use and benefit of the said Sidonia Hosford and Mary A. Kemler, in their individual right, and as executors of the will of Eichard Waller, deceased; and, as a part consideration for said transfer, said Sidonia Hosford and Mary A. Eemler, individually and as executors as aforesaid, assumed the payment of the aforesaid judgment in favor of the Second National Bank. It is also alleged in this connection that, upon the application of Sidonia Hosford, one Amanda L. Hosford was appointed receiver of the Excelsior Brassworks.
(5) Thereafter the Eirst National Bank, with knowledge of the alleged assumption by Hosford and Kernler of the payment of the judgment in favor of the Second National Bank, took an assignment of said judgment, which assignment was filed with the clerk of the district court on March 2, 1901.
(6) On the maturity of the note given to Carter, the makers, William G. Watters and Mary Watters, applied to the plaintiff for a loan of $1,000, with which to take up said obligation; and, at their request, plaintiff undertook to advance the money to the mortgagee, Carter, and to receive and hold the said mortgage as security for the money thus paid out. In accordance with this agreement, plaintiff paid
(7) Soon after this transaction, William G. Watters and Mary Watters applied to plaintiff for' a further loan of $500, offering a mortgage on the same real estate as security for its repayment, and representing that said property was incumbered by no liens except the judgments in plaintiff’s favor, and the Carter mortgage, then held by plaintiff. The plaintiff, having, as she claims, no knowledge of the lien of the judgment in favor of the Second National Bank, and desiring to accommodate the mortgagors, took from them a new mortgage in renewal of the Carter mortgage, in the sum of $1,000, and for the further sum of $500 then advanced to said mortgagors; and, believing that said mortgage for $1,500 was a first lien upon the property, ‘ she caused the old mortgage to be canceled of record.
(8) It is further alleged that although Sidonia Hosford and Mary A. Kemler are primarily liable for the payment, of the judgment owned by the First National Bank, and have property not exempt from execution from which the debt can be made, said bank has neglected and refused to enforce payment by them.
(9) The mortgaged property has been, by agreement of all parties, sold, and the purchase money paid into court, to be applied upon the liens involved in this controversy, as shall be found equitable and just.
Upon the case thus made, the plaintiff asks to have the cancellation of the Carter mortgage set aside, and the lien thereof restored, and a foreclosure decreed in her favor. She also asks that the judgments held by her, though inferior in order of fime to the judgment held by the First National Bank, be decreed to be superior thereto. Issue being taken upon these allegations, a trial was had to the court, and a decree entered reviving the Carter mortgage, and foreclosing the same in favor of plaintiff, for the principal
The contention of the appellee herein that the recital in said decree operates as an adjudication that Mrs. Hos-ford and Mrs. Kemler had become obligated as principal debtors for the payment of the appellants’ judgment, and that appellee may have the benefit of such adjudication in
III. The plaintiff has submitted a motion to dismiss the defendants’ appeal, and the defendants likewise move to dismiss the plaintiff’s appeal. Both motions are based upon the alleged insufficiency and failure to properly file the notice of appeal. The points raised are not of sufficient gen
There is also a motion to strike appellants’ argument because not filed in time. The showing made in resistance of the motion is sufficient, we think, to excuse the slight delay in the filing of the brief, and this motion is also overruled. For the reasons stated in the foregoing opinion, the decree of the district court will be modified by allowing the plaintiff’s subrogation to the lien of the Carter mortgage to take effect as of February 18, 1898, and by confirming the lien of appellant’s judgment as second in order to the lien of the Carter mortgage, and, as thus modified, the decree of the district court will be affirmed. The costs of this appeal will be paid one-half by the appellants and one-half by the appellee.— Modified and affirmed.