79 Iowa 658 | Iowa | 1890
On the first day of February, 1876, Lewis O. Parker executed and delivered to the Mercantile Trust Company of New York his certain bonds, to the amount of fifteen hundred dollars, payable on the first day of February, 1881. To secure the payment of said bonds, Parker executed and delivered a trust deed which conveyed ‘ ‘ the west twenty-two feet of lot number six, in block number fourteen, in the original town of Bedford, Iowa.” On the tenth day of February, 1881, the trust company assigned the bonds to Mary W. P. Crane, of Cook county, Illinois, and on the thirtieth day of September, 1884, she assigned them to plaintiff. On the third day of July, 1878, Parker com veyed, by warranty deed, all his interest in said prem.ises to Dunning and two others, and the deed provided that Dunning should assume and pay the aforesaid bonds. On the eighth day of March, 1880, Dunning and his co-grantee conveyed said premises to defendant Finn, by a warranty deed, which provided that it was subject to the deed of trust aforesaid, with interest from February 1, 1880. On or about March 11, 1881, Mary W. P. Crane and defendant Finn entered into an agreement in writing which recited the making of the loan to Parker, and further stated and provided as follows:
*660 “And, whereas, the said Lewis G-. Parker and Addie M. Parker have conveyed the said mortgaged premises, and the same are now owned by one Gf. L. Finn, of Bedford, Iowa, who, in purchasing, has taken said real estate subject to the said loan of fifteen hundred dollars, above referred to, and the same being now due, and said Finn being desirous of having the said loan renewed and extended for the period of five years from and after the first day of February, 1881; and, whereas, one Mary W. P. Crane * * * has purchased the said bonds and mortgage from said Mercantile Trust Company, and is now the absolute owner of the same, a full and complete assignment having been made therein to her: Now, therefore, in consideration of the foregoing premises, and other valuable considerations, the said Mary W. P. Crane hereby agrees to extend the time for the payment of the principal sum of said bonds till February first, 18S6, upon the payment of the interest, at the rate of seven per cent, per annum, at the times stated and agreed upon in said bonds, and upon the full and complete performance of and compliance with all the conditions named and recited in said bonds and mortgage above mentioned. And it is hereby expressly agreed that, should any of the conditions of said mortgage, but especially those relating to the payment of interest at the times stated, and to the payment of taxes, and the effecting of insurance upon the property, not be promptly complied with, then this agreement for an extension of time shall be void, and the principal sum named and expressed in said bonds, as well as all the due and overdue interest which may have accrued thereon, shall become due and payable at once, at the election of the said Mary W. P. Crane, and the said Mary W. P. Crane may use any and all the remedies upon the said bonds and mortgage as, by the terms of said instrument, her assignor, the said Mercantile Trust Company, could have used, in like case of forfeiture, while the said Mercantile Trust Company was owner of the same. ' The intention being to continue this loan for the term of five years, at the rate of*661 seven, per cent, per annum, upon the compliance with the terms of the bonds and mortgage above mentioned ; and any condition in said mortgage and bonds as to said debt drawing interest at the rate of ten per cent, after the maturity of the note is expressly waived by said Mary W. P. Crane, and in that regard said bonds are treated as if they never had matured, but had been made for the term of ten years, instead of five. And, in case the bonds are due by reason of the non-compliance with the terms thereof as to the payment of interest, taxes, insurance, etc., the said Mary W. P. Crane may do and have the same rémedies as the said Mercantile Trust Company could have done under like circumstances. It is further agreed .that in future the intérest . that falls due oh this loan may be paid by said Finn at number 108 Dearborn street, in the city of Chicago. Dated this eighth day of March, 1881.
“Mart W. P. Crane,
“By Rickel & Eastman, Agents and Attorneys.”
“In consideration of the premises above named, I hereby accept the above conditions upon which said extension is granted, and I agree to carry out and execute the provisions of this agreement; and, should I fail or neglect so to do in any respect, I hereby authorize the holder of these bonds and said mortgage to proceed, according to the terms and conditions named, to foreclose and collect the same. Witness my hand at Bedford, Iowa, this eleventh day of March, 1881.
“ Gr. L. Finn.”
The transaction between Finn and Dunning was in part an exchange of real estate. Finn owned the property in which Dunning now has a bank, which was. valued at five thousand dollars, and he proposed to exchange it for that in controversy, which was valued at four thousand dollars, and for one thousand dollars in addition. It was finally agreed that he should receive for his property that in controversy, subject to the mortgage thereon for fifteen hundred dollars, and in addition the sum of twenty-five hundred dollars; and
' II. Plaintiff, to sustain his alleged cause of action against Finn, relies in part upon the transaction between Finn and Dunning, and in part upon the Crane agreement for an extension of time of payment. The original agreement between Finn and Dunning was that the mortgage in question should be satisfied before the exchange was made, and that Finn should receive the mortgaged property, and one thousand dollars in addition, for his property. The mortgage debt was not then due, and its owner would not accept payment unless the sum of thirty dollars was paid as an inducement, besides the amount then due. For that or some other reason the original agreement was modified, and Finn was paid the one thousand dollars first' contemplated, and also the amount of the mortgage at the date of the exchange of deeds, and the mortgaged property, for his property. Dunning testifies that at that time the question of the mortgage came up, and Finn asked him to pay the money; that he said “ he could use it to good advantage, as it only drew seven per cent, interest; and that he would pay the mortgage when it became due, — he could make more than that out of the money;” and that the money was paid under that agreement. Finn explicitly denies that such an agreement was made, and says that he expressly refused to become personally responsible for the debt, and stated, as one of his reasons, that he wished to dispose of the property, and the insurance might not be kept up; that the deed represented the final agreement between the parties. Finn is to some extent corroborated by the deed, which recites that it is subject to the mortgage, but does not make the grantee responsible for it. Since the burden of proving
Reversed.