60 Iowa 315 | Iowa | 1882
The material facts in this case stated, as nearly as .practicable, chronologically, are as follows:
1. On the 10th day of June, 1873, Lewis O. Walter and wife executed to the .¿Etna Life Insurance Company a mortgage upon the W -J of SW \ of section 23, and the W -J of
2. On the 19th day of January, 1875, said Walter and wife conveyed by warranty deed to S. D. Crosby, one of the defendauts herein, a portion of the mortgaged premises, to-wit: the W of the NW ¿ of section 26, and the NE ^ of the NE ^ of section 27. Crosby, as part of the consideration-price of the land purchased by him, agreed in writing to assume the mortgage, and to 'have it released on all the property mortgaged, including the eighty acres- not conveyed to him.
3. On the 19th day of January, 1875, being the same day that he purchased the land, Crosby executed a warranty deed of the same premises to Sarah E. Griswold. Frank Griswold testified that when they bought they assumed the .¿Etna mortgage.
4. On the 19th day of January, 1875, Sarah E. Griswold and her husband, to secure the sum of $2,000, executed to S. D. Crosby a mortgage upon eighty acres of the land conveyed to them by Crosby, in connection with other lands. This mortgage is now held by the Second National Bank oí Aurora, intervenor herein. On the 1st day of January, 1877, Sarah E. Griswold and her husband, to secure the sum of $1,000, executed to S. D. Crosby a mortgage upon all the lands conveyed to them by. Crosby, in connection with other lands. This mortgage is now'held by D. J.- Pike, intervenor herein. On July 25th, 1878, Sarah E. Griswold and husband, to secure the sum of $430, executed to Wm. Lammerton a mortgage on^he land last above described. This mortgage was assigned' to M. W. Gleason, a defendant herein, October 4, 1878.
5. On January 25, 1875, the said Lewis C. Walter and wife conveyed to Matthew Palmer, a defendant herein, the portion of the mortgaged premises not before conveyed to
6. On the 8th day of March, 1879, Sarah E. Griswold and husband executed a quitclaim deed to Crosby for all the lands .before that time conveyed by Crosby to Sarah E. Gris-wold, and other lands not in controversy in this suit: Crosby, as part of the consideration, assumed and agreed to pay all the mortgages upon the land. This quitclaim deed, although dated March 8, was not delivered until March 20, 1879.
7. The defendant, Gleason, claims title to the land sold by Griswold to Crosby, under a sheriff’s deed executed March 21, 1881, upon an execution sale against Griswold, March 20, 1880.
'8. The defendant, Seymour, claims to have a mortgage for $4,000, executed by Palmer and wife to Crosby on the Palmer land, dated November 28, 1879, and assigned by Crosby, May 5, 1881...
9. On the 22d day of February, 1879, Crosby obtained a loan from the plaintiff of $1,500, and executed his own note therefor, with Gleason as security. At the time of the obtaining of the loan, it was agreed that the note executed by Crosby and Gleason should in a short time, within thirty days, be taken up, and that the loan should be secured by the JEtna mortgage in question, or in some other manner satisfactory to plaintiff, and if the security offered did not prove satisfactory, that the money should be raised in. some other manner. "With the money obtained from plaintiff, Crosby paid to the .¿Etna Insurance Company the amount of its mortgage, and on the 28th day of February, 1879, secured an indorsement of the note to himself, or order, without recourse, and an assignment of the mortgage. On the 15th day of March, 1879, the plaintiff, having obtained the opinion of one Gortner that the note and mortgage would furnish a valid security, the note of Crosby and Gleason was given up, and Crosby executed a new note for the amount^ payable in two
The case involves two parts which require separate consideration.
The only real question is as to the interest which Crosby acquired in the note and mortgage through the indorsement and assignment from the ¿Etna Insurance Company.
The appellant insists that Crosby simply acted as the agent of the plaintiff in procuring the assignment of the note and mortgage, and that the indorsement to Crosby should have the same legal effect as though the indorsement had been made direct!) to the plaintiff.
We are not able to discover from the evidence, however, that it was the intention of the ¡parties that the transfer of the note and mortgage should be effected in any other manner than that in which it was done. It is true the transfer of the mortgage was made with money furnished by the plaintiff. But this money was loaned to Crosby upon his note secured by Gleason, and it became, in fact, the money of Crosby. When Crosby took up the note and mortgage he paid for them with his own money, and he became possessed of them in his own right. No fraud was perpetrated upon the plaintiff’ by Crosby’s taking the indorsement and assignment to himself. The plaintiff was already secured for the loan by the indorsement of Gleason.
It was not the absolute agreement in' advance that he should take the ¿Etna note and mortgage to secure the loan. The agreement was that he was to have security which was satisfactory to him, either through the ¿Etna mortgage or other security- He was under no obligation or necessity to accept the ¿Etna mortgage. He might have held the Crosby and Gleason note, which was a short time note, and refused to extend the time of the loan. He elected, after taking advice which was satisfactory to him, to extend the time of the loan to two years, to deliver up the Crosby and Gleason note, take a new note from Crosby, and to accept as collateral security, by mere delivery, the ¿Etna note and mortgage, then two and one-half months over due. He became simply an assignee
Affirmed.
This case was decided December 9, 1882, but was held for re-hearing, which was granted, and a supplemental opinion was Hied at the June term, 1883. The case will appear in the Iowa Reports in its order as of that term.