| Iowa | Dec 10, 1917
Plaintiffs are husband and wife, and defendants John M. and Ethel Ferguson are husband and wife. John and James are brothers. It is alleged that they are co-owners of 210 acres of land described in the petition, each owning an undivided half interest, subject to a life annuity to their mother, which was made a lien on the land; that, in June, 1910, defendants John M. and wife executed a mortgage to defendant bank, mortgaging the undivided one-half interest of John M. to secure the payment of $5,000; that, in May, .1911,. plaintiffs executed to defendant John M. an option to purchase their undivided half interest in said real estate; that thereupon, about
The defendants, John and wife and the bank, filed separate demurrers. The demurrer of John and wife is on the grounds: First, that plaintiffs are not entitled to the relief
A number of propositions are argued at length by appellants which are not raised by the petition. The only claim set out in the petition for canceling the option from plaintiff to defendant John is the execution of the last two mortgages to the bank. It is not alleged in the petition that there was any fraud or inadequacy of consideration or any reason for setting aside the option other than as stated, the execution of the mortgage; nor is it alleged that defendant John has in any manner defaulted in the payment of taxes, or other things to be performed by him under the-option. It is intimated by defendants that there has been an increase in the values of real estate since the execution of the option, and that this is the real reason for plaintiffs’ desire to have it set aside.
It is true that the two mortgages cover all the land, but defendants John and wife could not mortgage plaintiffs’ interest. The option was recorded, and this would be.notice to the bank and the world of the rights of the parties, John and James. John could obtain no title by reason of the option until he had exercised his right of purchase and
Appellants commence their argument in this way:
“This case being in equity, whose limits are endless and reach as far as those of the Golden Rule, you will pardon your friend when he, in his address, at times avoids the guide posts wisely erected within the realms of law, but sometimes necessarily avoided in the grander fields .of equity. * * The district court upholds the defendants’ arbitrary actions and, by upholding two demurrers filed by defendants, compelled plaintiffs to seek justice in the Supreme Court. This astounding decision staggered friend and foe alike, and would mean, if it-were law, that the giving of any option to purchase real estate was co-extensive with the permission to sell or mortgage the same to Tom, Dick or Harry, thus opening an excellent field for-fraud .and its kindred vices. * * * The very moment when the two mortgages were filed for record by the bank, the plaintiffs’ title to the property therein described was lost to plaintiffs unless they paid the mortgages as stipulated therein, or gave valid reasons for not being obliged to pay, or show the mortgages are or were invalid. * * * That the giving of the two mortgages impair, if they do not destroy, plaintiff’s credit, and disgrace his father’s memory, by reducing the freehold descended from a noble father to his sons, free from debt, but now soiled with the unerring proofs of extravagance, shiftlessness, and in this*1080 case treachery, whether premeditated or not, we shall not now decide.”
Appellants cite Code Section 5012, in regard to fraudulent conveyances and punishment therefor; but, as said, some of the matters argued are not covered by the petition. They also cite cases to the effect that the mortgagee obtains such an interest in real estate that he is a purchaser, within the meaning of the recording acts. They also cite cases that, where a deed is procured from one of inexperience for an inadequate consideration, and as the result of undue influence growing out of confidential relationship, it would be set aside as fraudulent, and claim that the evidence, under the cases cited, is sufficient to show fraud. Further, that a grantor who, through fraud, was induced to convey her land for an inadequate price, is not estopped from setting up the fraud against a subsequent purchaser who had knowledge of it and participated therein. Appellants also cite Section 3011 of the Code, in regard to the assignment of non-negotiable instruments. There is more in the argument of like character, but these matters are outside the case made in the petition.
Appellees say of appellants’ argument:
“We have read with considerable pleasure and some amusement the argument of counsel for plaintiffs, in which we cannot but admire the easy style, flowing sentences and rounded periods. As a literary instrument, it is undoubtedly excellent; as a story of fiction, it undoubtedly would meet the approval of the magazine editors; but as a bare, dry argument of law, it perhaps is not up to the standard. A great many things are taken for granted in the arguments that nowhere appear in the abstract.”
Without further discussion, it is our conclusion that the judgment of the district court, under the record, was right, and it is, therefore, — Affirmed.