77 Iowa 263 | Iowa | 1889
II. The objection to the testimony of Mrs. Thompson as to what passed between her and her husband before going to the bank to execute the deed was well taken.
III. In support of the defense, Mrs. Thompson testifies that on going to the bank Mahlon Head said: “Mrs. Thompson, this is a warranty deed of your quarter section of land, conveying the farm to me. I am taking it, and assuming all encumbrances thereon. If you are willing, sign your name right here.” Mr. Thompson testifies that on calling at the bank Mahlon Head said: “‘What shall we do with regard to the mortgages on your land ? ’ I told him the best thing I could do was to turn the land over to him, and he assume all the encumbrances on the land. He said, ‘ All right; I would rather do that than foreclose the mortgage.’ ” Mahlon Head testifies that when Mr. Thompson came into the bank he said to him : “ ‘ George, what are you going to do about that land and those mortgages and those notes \ ’ and he answered : ‘ All I can do is to turn them over to you. We can deed the land to you; and I said: ‘ Will you and your wife sign the deed % ’ and he said, ‘ Yes ; we would like to get along with as little expense as possible.’ ” That when Mr. Thompson
IV. Head’s inquiries of Mr. Thompson as to liens were such as to show him that Head was relying upon his statements, and good faith required that Thompson should have declared the existence of the Meath mortgage. This he did not do^ Though it is true that Head had constructive notice, yet, if Thompson knew that Head was relying upon his statements, then it was a fraud for him not to have disclosed the existence of the Meath mortgage, and such a fraud as should make void the agreement if one were made.
Affirmed.