17 Iowa 503 | Iowa | 1864
IY. But even if the rule contended for by the plaintiffs was applicable to their case, it is very questionable whether the facts proved by them would bring their case within the rule. It appears from the answer of Tufts, which was admitted as evidence, that at the time he took the note and mortgage as collateral security, and when they were finally set over to him, Patterson represented that he would surely redeem it, but if he did not, it was secured by three hundred and ten acres of valuable land which Tufts would get on foreclosure. Tufts did not know that there was another mortgage, nor did Patterson represent that there was not another. There was certainly no agreement that plaintiffs’ mortgage should have priority over the other, for the other was not mentioned. The other mortgage was upon record, and was notice to Tufts of its existence, and, doubtless, Patterson supposed'Tufts knew of it; and, supposing such fact, every direct statement set out in Tufts’ answer, as made by Patterson, is readily understood, and is consistent with truth. It may be doubtful, at least, whether the representations made to the witness, Col. Abbott, were made in the presence, or ever came to the knowledge, of Tufts; and, indeed, since Tufts himself does not state or claim that they ever did, it is reasonable to presume that they did not, and, therefore, they were not made the basis of the transaction, and, hence, not available in support of it. Again, it appears from the pleadings and evidence, that while Tufts took the assignment of the note and mortgage as collateral, before the assignment of the j udgment, it also appears that the final purchase of it by Tufts was made after Patterson had sold the judgment to Lucas, and, of course, when he could not prejudice the rights of Lucas by any representations or agreement he might have made. It also appears that some ot these representations by Patterson, (but which are not
Nor is it made to appear when or for what consideration the plaintiffs, Isett & Brewster, obtained the assignment of the note to them; nor whether they had any knowledge, at the time they acquired it, of the alleged representations by Patterson to Tufts; nor whether they took the same relying upon such representations. Without further discussing the facts of the case, we think the plaintiffs have not clearly established their equity as against Lucas, even if the rule obtained which is contended for by them. The judgment of the District Court is
Affirmed.