182 Iowa 452 | Iowa | 1918
— I. On the 25th day of October, 1912, Edward La Plant, plaintiff, and Nathaniel K. Beechley, defendant, entered into an agreement whereby Beechley undertook to convey to La Plant a farm of 448 acres, near Mt. Vernon, together with all grain crops, live stock, and machinery thereon, in consideration for which, La Plant promised to deed to Beechley ten tracts of improved property in Cedar Rapids, one subject to a mortgage of $5,000, and another subject to a mortgage of $2,500, and also 1,832 acres of land in San Miguel County, New Mexico. Except as stated, all property was to be free from incumbrance; but La Plant agreed to accept or negotiate mortgages on the Cedar Rapids property ■ to the extent of $40,000, out of the proceeds of which the mortgage of $30,000 on the 448 acres of land, accrued interest, and costs, foreclosure having been commenced, together with judgment liens, might be satisfied; and La Plant was allowed to negotiate loans of building and loan associations, if unable to procure same elsewhere. Pos
“It is further agreed that if default be made in the payment of any of said principal or interest for the space of ninety days after the same becomes due * * * then the whole indebtedness secured hereby shall become due and collectible at the election of the holder hereof and this mortgage may thereupon be foreclosed for the whole of said money.”
La Plant credited $120 on such interest, September 10, 1914, and, on the same day, Beechley mailed him a check on the Cedar Rapids National Bank for $100, which La Plant collected on the 18th of the same month. On the day before, attorneys for plaintiff had written Beechley that La Plant elected to declare the mortgage due, owing to default
After the note hfid become payable through the election so to declare, its maturity was not obviated by the subsequent payment of interest. Whatever La Plant’s motives may have been, he merely took advantage of the terms of the contract (the mortgage), not by way of forfeiture, as suggested by plaintiff; and, if then the holder of the note and mortgage, had the right so to do. Swearingen v. Lahner, 93 Iowa 147; Moore v. Crandall, 146 Iowa 25.
II. The defendant, by way of counterclaim, alleged that the plaintiff represented that the 1,832 acres of land in New Mexico were worth $13 per acre; that this was knowingly false, and made to induce defendant to make the exchange; and that he so did in reliance on such representation. The testimony of defendant tends to support these allegations, while that of Hally, the broker, was that he knew nothing of any such statements, and that defendant, in trading,-did not regard this land as of much value, and merely took a chance on it; and La Plant denied having made any representations such as testified to. The defendant had had considerable experience in handling real estate, and Hally’s explanation that he regarded this land as “velvet” if the deal went .through is not improbable. At any rate, the apparent preponderance is against defendant; and, as the evidence of the witnesses was taken in open court, we are not inclined to interfere with the dismissal of this part of the counterclaim.
The judgment and decree of foreclosure is reversed, the dismissal of the counterclaim affirmed, with modification as indicated, and the cause remanded for decree and judgment in harmony with this opinion. — Reversed in part; affirmed in part.