135 Iowa 280 | Iowa | 1907
At the time in question, defendant Orley La Nier and-his two sisters, Ida L. Campbell and Josephine Parker, were the joint owners of a tract of seventy-five acres of land situated in Wayne county. In January, 1902, said La Nier procured a loan from the Central Life Assurance Society in the sum of $800, and to secure the same his said sisters not only signed the note given, but joined with him in the execution of a mortgage on said tract of land as a whole. Said mortgage was at once made a matter of record. At the same time, to protect and secure his sisters against liability, La Nier executed to. them his note for $800, and as security therefor executed and delivered to them a mortgage on his one-third interest in said land. This mortgage was not made a matter of record until on August 9, 1904. On Au-' gust 4, 1904, said La Nier being indebted to the plaintiff bank on a past due obligation, as security therefor executed
As already indicated, the contention of plaintiff is that a new or additional consideration was furnished by an agreement to extend the time of payment. That such an agreement, if fairly entered into, will be sufficient as a new consideration, and will entitle the mortgage based thereon to be regarded as superior to a prior unrecorded mortgage, may be conceded. Hoskins v. Carter, 66 Iowa, 638; Sullivan v. Young, 55 Iowa, 132.
Going now to the record for the facts, we find the evidence on the subject confined to the testimony of two witnesses — the defendant La Nier and one McCulloch, an employe of the plaintiff bank, and who acted for it in taking the mortgage. McCulloch testified that there was an agreement to extend time to January 1st, and this is denied by La Nier. The testimony of the latter is somewhat corroborated by the fact that .the note held by the bank bore the name of a surety. Under a familiar rule, .the effect of an extension of time would have been to release such surety; and McCulloch, on being asked why he did not take a new note for the amount due, answered “ that there was another name on the note as surety, and I did not wish to release what other security we had.” In this state of the record, a finding against the contention of plaintiff was -warranted, and, especially, as the trial court was in better position to judge of the credibility of the witnesses, we should not assume to reverse the finding.
So, too, we 'think the court was warranted in its finding against plaintiff on the issue of notice. The wife of defendant La Nier was present at the time of the execution of
On the whole, we conclude that the decree was right, and it is affirmed.