54 Iowa 243 | Iowa | 1880
I. The petition alleges that the plaintiff holds the fee simple title absolute to the lands in controversy. The answer of defendants avers that the conveyance to plaintiff under which he claims the land was given to secure the payment of a promissory note executed by plaintiff’s grantor;
II. We find the material facts of the case to be as follows:
1. On the 23d day of April, 1857, one TIollenback, in whom the title of the land then rested, conveyed it to plaintiff to secure the payment of a promissory note for $275, due one year after date. Plaintiff executed a written agreement to TIollenback, obligating himself to reconvey the property upon the payment of the note at maturity and the taxes accruing upon the land. The agreement provides that upon the failure of Ilollenback to pay the money secured at maturity, and the taxes, the plaintiff should have the right to sell the land. Time, by an express provision of the agreement, is made of the essence of the contract. Indorsed upon this instrument is the following agreement: “ I hereby agroé to receive payment on the within bond as follows: at 37-J por cent on $200 from the date of the above bond to the date of the payment. Signed Jacob IT. Brush.”
The jfiaintiff disputes the execution of this indorsement. Yet he does not deny his signature or testify positively that he did not execute it. Ilis testimony is to the effect that he believes that he did not execute it, and this belief is based upon his manner and custom in transactions of the same
2. Tbe debt secured by tbe deed and agreement has not been paid.
3. November 19th, 1866, Hollenback assigned bis interest in tbe agreement executed by plaintiff, and in tbe land, to Elijah and Hobert Middlebrook. Hobert afterwards assigned to Elijah, who subsequently conveyed tbe land to Ole Peterson and Oli Erickson Noem, all of whom are made parties to tbis action.
4. On tbe 28th of March, 1868, tbe defendant Elijah Middlebrook tendered to plaintiff tbe sum of $452, being tbe amount of tbe note and interest thereon at six per centum per annum.
5. Tbe plaintiff paid taxes upon tbe land for tbe year 1857, and four or five subsequent years, amounting in tbe aggregate to about $42.
No presumption is raised; no inference can be drawn contradicting the face of the note, from the fact that the deed • recites its consideration to be $200. An additional consideration may have existed and may have been included in the note.
The indorsement on the note has no force to establish usury. It binds plaintiff to receive at any time payments of the note with 37|- per centum on $200. This appears somewhat as though the $200 may have been the original contract, but it is consistent with other suppositions. We are not authorized to find, rrpon this evidence, that the contract was usurious. Surely, if there is usury in the transaction, the defendants would have shown it by the parties to the contract, both of whom were witnesses upon the trial. We cannot, upon the extremely meager and uncertain evidence offered to us, find the existence of usury when it was in the
It will bo observed that the indorsement upon the agreement of plaintiff does not bind Ilollenback to pay the interest named, plaintiff simply agrees to accept it. It was evidently intended to provide for the payment of the note before its maturity.
Y. The defendant Middlebrook tendered to plaintiff $452. The tender is denied by plaintiff, but we think it is established by the preponderance of proof. But the tender did not cover the full amount due plaintiff. It equalled the amount due on the note, but in addition thereto the agreement provides that the taxes paid by plaintiff shall be repaid him by Ilollenback. Plaintiff paid about $42 upon the taxes; this sum was not covered by the tender. The defendants, therefore, fail of the protection they planned and expected through the tender.
The foregoing discussion disposes of all the questions in . the case which we deem necessary to be considered.
Plaintiff ought to recover the amount of the note and $42 paid for taxes, with interest from maturity of the note and time of payment of taxes to date of decree, and a decree of foreclosure ought to be entered providing for the sale of the property as in actions to foreclose mortgages. Plaintiff’s petition asking that the title of the land be quieted in him will be dismissed.
The judgment of the District Court is reversed and the cause is remanded for a decree in harmony with this opinion, or at defendant’s option such a decree will be entered in this court. Plaintiff will pay the costs of this appeal.
Eeversed.