Kellogg v. Frazier

40 Iowa 502 | Iowa | 1875

Day, J.

Plaintiff introduced the transcript of a record frQin the Circuit Court of Dodge ’county, Wisconsin, showing a balance of an unsatisfied judgment of $1,600, on the notes and mortgage of Isaac L. Graves, and an execution returned, “ no property found,” and the mortgage in suit, and the assignment thereof to plaintiff. This mortgage is in the usual form, and no question is made upon any part of it except the defeasance, which is as follows: “ Provided always, and these presents are upon this express condition, that if a certain mortgage, made on the 3d day of June, 1869, by Isaac Graves and Bell Graves, of Oak Grove, in Dodge county, Wisconsin, and made to William Graves, then of that county, to secure the payment of certain notes described in said mortgage, and which mortgage is recorded in Yol. 22 of mortgages, on page 7, of the records of said Dodge county.

Now if said mortgage, executed as aforesaid, by said Isaac Graves and Bell Graves, and said notes therein described, are duly and fully paid according to the terms thereof, then these presents shall be null and void.”

The defendant introduced liis sheriff’s deed, dated June 29th, 1873, showing that the land in controversy was sold to him on execution against William Graves, and testified on his own behalf, as follows: “ I purchased land in controversy on the 29th of June, 1873, on execution against Win. L. Graves. Before purchasing it, I wrote to plaintiff in Dodge county, Wisconsin, and asked him to give me the amount of the Isaac L. Graves notes and mortgage, and the amount of the lien on the land in controversy intended to be created by the mortgage in suit, and he made an evasive answer, and did not give me either the amount of the Isaac L. Graves notes and mortgage, nor the amount that the mortgage in suit was intended to secure. He said that the Isaac L. Graves mortgage was in suit, and he said he did not know how much he would claim on this mortgage now in suit. I had no knowledge of the amount of the Isaac L. Graves notes and mortgage, nor of the amount that the mortgage in suit was intended to secure when I purchased said land.”

It is claimed that the plaintiff is estopped from insisting úpon a foreclosure of this mortgage because he did not, when 1. evidence : competency. aPPealed to, furnish more satisfactory information 0f t]ie amount the mortgage in question was given to secure. The testimony of defendant that plaintiff made an evasive answer is the statement not of a fact, but of a mere opinion or conclusion. We should have both letters, or their contents, in order to determine whether or not plaintiff’s answer was evasive. The Isaac L. Graves mortgage was the primary security. The mortgage in suit could be resorted to only for the satisfaction of any balance remaining unsatisfied after exhausting the first mortgage. Whilst the first mortgage was in suit plaintiff could not tell bow much would remain unsatisfied, nor how much he would claim on .the mortgage in suit. There was in the answer, so far as we can see, nothing to mislead defendant, nor to stifle inquiry, nor which should operate as an estoppel upon the plaintiff.

But the point mainly relied upon is that the mortgage is void, because it does not- show the amount it is given to secure.

If the mortgage had recited that it was given to secure so much of six notes amounting to $2,200, as should remain 2. mortgage: amount? o£ unsatisfied after exhausting a certain mortgage executed to secure the same by Isaac L. Graves to William Graves, it would, most likely be conceded, that the mortgage was sufficient. ' But this is what is in effect done. Eeference is made to the Isaac L. Graves mortgage not only by date, but by the volume and page of the records upon which it is recorded, and it is declared that the mortgage in question shall be void, upon the full payment of the notes described in that mortgage, according to their terms.

The effect of this reference is just the same as though the mortgage and the notes it secures had been incorporated into, and made a part of the one in question. The mortgage furnishes ready means of ascertaining the exact amount it is intended to secure. It is only necessary that a mortgage should furnish a junior creditor the means, by the inspection of the record, and by common prudence and ordinary diligence, of ascertaining the extent, of the incumbrance. 4 Kent’s Commentaries, page 176.

Binding such a mortgage as the one in question upon record, the exercise of the most ordinary care and prudence should have suggested to one' intending to purchase the property, the propriety of procuring a transcript of the record in Dodge county, Wisconsin, which would have furnished certain information of the amount intended to be secured.

The mortgage sued on was on record when defendant purchased. It declared that it was given to secure E. S. Eussell. It pointed to- the records of Dodge county, Wisconsin, and said in volume 22, page 7, of - that record you will find full information of the amount secured.

Defendant bad not only constructive notice, but knowledge in fact of this mortgage. He wrote to the plaintiff, and learned that the Wisconsin mortgage was in suit, and that plaintiff did not know how much he might eventually claim on the mortgage in suit; and then, without further investigation or inquiry he purchased the property at sheriff’s sale, and now he claims that the mortgage is as to him void. The defendant cannot be regarded as an innocent purchaser without notice. See Crane v. Deming, 7 Conn., 387, (295;) Stoughton v. Pasco, 5 Conn., 442.

AeeIEMED.