68 Iowa 249 | Iowa | 1885
I. The land, more particularly described, is N. of the N. W. ¿, and the N. 43 acres of the S. |- of N. W. ¿-, of section 5, township 87, range 40. Hungerford, it appears, never had the legal title to the property.. It seems to be agreed, however, that he purchased it of the Iowa Railroad Land Company, and became the equitable owner, and also that Hallam holds the legal title merely as security. It is agreed, also, that Hallam is a prior incumbrancer as to the entire tract covered by the plaintiff’s mortgage, except 21-|-acres, to-wit, the N. 21|- acres of the S. E. ¿ of the N. W. ¿ of the section. As to that, the plaintiff denies that Hallam has any lien at all, notwithstanding lieholds the legal title; whereas Hallam contends that he holds that as lie holds the remainder, and holds it all as security for his debt, and that his debt constituted the prior incumbrance. There is no question of priority, because it is not denied that ITallam is the prior incumbrancer as to the 21-J acres, if the same was understood to be embraced within his security, as he contends. The fact appears to be that Hallam, in January, 1882, loaned D. IT. Hungerford $1,100. Hungerford at that time held six contracts for deeds from the Iowa Railroad Land Company. The six contracts embrace the N. W. ¿ and the N. -J of the S. W. J of the section in question. He assigned all the contracts to Hallam. Afterwards, the Iowa Railroad Land Company being paid up, Hallam took from the company a
The question is as to what the understanding was in that respect. There never would have been any difficulty, we think, but for the connection which one Cyrus Ilungerford had with the land. At the time of the purchase from the Iowa Railroad Land Company, D. II. Ilungerford took the six contracts, not for himself alone, but partly in trust for Cyrus Ilungerford, who was regarded, at least as between the two Hungerfords, as the owner of one-lialf. Whether he was at any time regarded as the owner of an undivided half does not appear. Certain it is that Cyrus became at some time the owner of the S. and D. II. of the N. each having 117 acres, two of the subdivisions being fractional. This was the condition of their ownership at the time the plaintiff took his mortgage from D. K. Ilungerford on the N. 117 acres, and Ilallam claims that this was the condition of their ownership at the time he first acquired an interest in the land. The plaintiff’s theory is that there was at one time a different division, by which the 21-J acres in controversy was not embraced in D. II. Ilnngerford’s part, but in Cyrus’ part; that such was the division at the time D. K. Hunger-ford’s indebtedness to Ilallam accrued, and at the time he undertook to give Hallara security; and that there was no understanding that Ilallam was acquiring security upon Cyrus Hungerford’s land for D. K.’s debt.
We are brought, now, to a consideration of the evidence upon this point. We have already seen that D. K. Hunger-ford, the plaintiff’s mortgagor, never had the legal title to any part of the land covered by the six contracts for deeds executed to him by the Iowa Railroad Land Oonqrany; but at the time he borrowed money of Ilallam he held the contracts, and he assigned them all to Hallara, and upon them
It is conceded, then, that Cyrus owned at least a part of that one of the middle forties which embraces the twenty and one-lialf acres in controversy. We think the fact is that he owned eighteen and one-half acres in each of the middle forties, just as it is conceded that he did afterwards. That division gave him precisely one-half in quantity, and in a regular form, and the evidence shows that it was one-half in value. But the point to be considered just here is that he owned at least a portion of the forty which embraced the twenty-one and one-half acres in controversy. The understanding was that he should give such security as he could upon his portion of the land. It is conceded that he owned the entire two south forties, and D. K., the holder of the contracts, was called upon to assign to Hallam the contracts for those two forties, which he did. But those two did not embrace all of Cyrus’ land. If he owned, as we think he did, the south eighteen and one-half acres of each middle forty, the problem as to how Hallam should be given the security to which he was entitled was not one of entirely easy solution. The Iowa Railroad Land Company was not bound to receive pay upon a part of a forty, and convey it to one claiming to be assignee of part of a contract. Now, what did they do? Ilallams’s testimony upon the point is in these words: “Cyrus gave me, as security, his contracts for the N. -| of the S. W. and S. -J- of the N. W. Taking this testimony to be true, Hallam acquired as security for his loan to Cyrus four contracts, to-wit, contracts for the south two forties and for the middle two forties. But, according to the dates of assignments, it would appear that only three contracts were assigned at the time of the loan to Cyrus, and for the purpose of the opinion, it may be conceded that that was all. But, in view of the difficulty of giving Hallam security upon precisely the south 117 acres, we think that what was done
We have not noticed every consideration relied upon by the plaintiff. But there is none more cogent than that which we have discussed. It is sufficient to say that we think that the decree gave the ¡plaintiff a lien upon land as the first and only lien, which he did not understand was such when he took the mortgage, and which he did not understand was such when the action was commenced, and that we think that the
II. The defendant contends tjiat he should have been allowed more for attorney’s fees, but we see no evidence as to what would be a reasonable fee, and we cannot disturb the decree on that point.
III. The plaintiff appealed upon the ground that the decree allowed Ilallam too much interest. The court allowed Ilallam ten per cent interest on §150, being money paid by him for taxes and other prior claims to protect his own lien. This ivas done after the plaintiff acquired his mortgage. "Whatever might have been the agreement between Ilallam and D. K. Hungerford, we do not think that, as against the plaintiff, he was entitled to more than six per cent.'
The plaintiff also appealed on the ground that the court allowed Ilallam an attorney’s fee of §55. We see no evidence to justify this allowance.
As the decree is modified in some respects in favor of the plaintiff, and in some respects in favor of ITallam, we think that they should each pay one-half of the costs.
Modified and Affirmed.