119 Iowa 645 | Iowa | 1903
The mortgage in question, which was executed by the Hallers on premises then owned by them, was extended by agreement of the parties thereto in 1894 for three years. In 1895 the Hallers conveyed the premises to others, who assumed and agreed to > pay the mortgage, and such other parties in 1897 secured a further renewal, the Hallers not having joined in the application therefor. The owners of the premises succeeding to the Hallers ultimately conveyed to the Shockleys, and, at the time the last extension above referred to expired, there were further negotiations for extension between the Shockleys and plaintiff, the effect of which. will be hereafter discussed.
We think it also sufficiently appears from the evidence that the delivery of the instrument was conditional not only on its being signed by the plaintiff, but also on the payment of the interest and taxes by the third party, to whom it was intended that the premises should be conveyed. No such payment was made, and therefore, the condition on which the contract was to become effectual not having been complied with, it was of no force. The testimony of the president of the plaintiff company would support the contention of plaintiff that the Shockleys became bound personally by the delivery of the writing, and became entitled to the extension of time as to the principal of the indebtedness, but this witness may very well have been mistaken as to exactly what was said by the Shockleys with reference to the terms and conditions on which the contract was delivered. We think the weight of the evidence is in support of the contention of the Shockleys as to this matter, and therefore reach the conclusion that the written agreement by which, if fully executed and unconditionally delivered, they would become-personally liable for the indebtedness, never took effect.
Our conclusion is that the decree is correct so far as it provides for a foreclosure of the mortgage and a personal judgment against the Hallers, but it is reversed so far as it provides for personal judgment against the Shockleys.— .Modified and aeeirmed.