53 Iowa 477 | Iowa | 1880
The deed is dated February 20, 1877, and was filed for record April 18, 1877. Some two or three months after the execution of the deed it was sent to the defendant. He discovered some errors in the deed, and sent it to Harris for correction. Respecting the corrections Harris testifies as follows: “ At the time the deed was made and acknowledged there were some, errors in it; and after the deed was made and acknowledged and sent up to be recorded, it was kept there some time. It was sent from there direct to Mr. Lamar, to Darlington, Wisconsin. Then, after that, Mr. Gray brought the deed back for correction. I think there was one error that Mr. Lamar did not state in it. That was the party to whom he made this deed. I think that was left out. That was put in and the other corrections were made, the party to whom Mr. Olkjer made it. The name of the grantee was left out,' and to whom this mortgage was given was also left out. ******* .” The evidence shows conclusively that the disputed portion of the deed is in the handwriting of Wm. Wart. Wart testifies that during the spring or summer of 1877, after the deed had been sent back from Wisconsin, “ Mr. Olkjer brought the deed from him to Mr. Lamar to me, and at his request I made some alterations in it. lie asked me, as the deed stood at the time, if it would hold Mr. Lamar to the payment of the notes and mortgage. I told him I didn’t think it would. Then he asked me if I could write something that would, and I told him. I thought 1 could, and I did it. c Which the party of -the second part
II. It is claimed by the appellants that the deed cannot be contradicted in this action by parol. Parol evidence is admissible to show fraud or mistake in a written instrument.
III. It is claimed, further, that the defense here insisted upon cannot be made available until the deed is corrected, and that to that end Olkjer is a neeesaiy party. We think, however, that in this action the defendant may show that the _ clause in question was inserted fraudulently and without his consent. It is true the determination will not be binding as against Olkjer. This might be a reason why Lamar should be allowed to make Olkjer a party defendant, and have a final adjudication in the matter. But, if ho is willing to waive the benefits of the judgment as against Olkjer, it is a matter of which the plaintiff cannot complain.
IY. The evidence shows that when the mortgage in question was executed to the plaintiffs Olkjer showed them his contract with Price, and advised them that the purchase price of the land was unpaid. The plaintiff’s mortgage is, therefore, junior and inferior to the mortgage subsequently executed to Price to secure the purchase money. It appears from the evidence that Lamar purchased from Olkjer to. avoid the
In our opinion the judgment of the court below is correct.
Affirmed.