197 Iowa 1074 | Iowa | 1924
This appeal presents issues that are within fairly narrow compass. The petition states, in usual and ordinary language, a cause of action to foreclose two first mortgages for $11,000 each, on two 40’s of real estate situated in Page County, Iowa. When the suit was instituted, the interest and taxes were due and unpaid for two years last past. The fee-title holder was- the defendant A. P. Parker, who had purchased the. land from the defendant N. C. Nelson on February 26, 1921, and at the time of purchase assumed and agreed to pay, as part of the consideration, the then existing mortgages of $11,000 each, which had been executed by Nelson to the plaintiff Bussard on June 26,1920. By reason of the breach in the conditions of the mortgages and notes, plaintiff filed his petition on October 3, 1922, and, relying upon the receivership provision in said mortgages, asked that a receiver be appointed, and further alleged as grounds therefor that the defendant Parker was insolvent, that the mortgages were excessive, and that plaintiff would suffer irreparable loss unless said receiver was appointed. During the pendency of the action, an application for hearing on the appointment of a receiver was filed, to which no answer or resistance'was made, nor was the evidence offered in support thereof controverted by the defendants. A temporary receiver was appointed, and qualified. Upon the final hearing of the cause, the defendants did not appear in person or by counsel, except that answers had been filed by the Parkers, in which he admits the execution of the notes and mortgages; that he assumed and agreed to pay them; and that he was then in occupancy of th? premises, and had been for a period of about one and one-half rears, claiming homestead rights. His wife, Tatha, denied the
“I was to band him these releases and dismissal of tbe ease and these two checks. Parker then said be would not settle unless be got tbe four Nelson notes of $47.50 each. Tbe first time he ever referred to these notes was after I got all of the releases and these other things. ’ ’
He refused to respect tbe agreement because Lingo could not give up tbe four Nelson notes. There is the rub. Parker, however, prior to tbe final hitch in tbe proceedings, did perform in part. A public sale was bad, at which time be sold all of bis live stock except tbe family cow and the children’s pony. He rented a bouse in Essex for tbe period of one year, and was about to enter into the management of an oil-filling station in that town. All of this was done witb tbe full knowledge, consent, and acquiescence of bis wife, Tatba, and witb the intention on their part to surrender possession of the premises, as stipulated.
Clearly, there is a legal sanction for the appointment of a receiver,'both temporary and permanent. It was the duty of a court of equity, having complete jurisdiction of the parties and subject-matter, to protect the plaintiff-mortgagee from consequent loss and damage, under the circumstances of the instant case.
Parker was in fact insolvent, and the security insufficient. The agreement between the parties is a valid contract, and constituted an abandonment of whatever homestead rights the Parkers might have otherwise claimed. They are in no position to complain. The trial court was justified in protecting plaintiff from further imposition and damage. The defendants cannot play fast , and loose. They must come into equity with clean hands. They had
Under the record facts, the court properly entered a decree in conformity to plaintiff’s prayer for relief, and the judgment entered must be, and is, — Affirmed.