131 Iowa 427 | Iowa | 1905
In 1898 plaintiff conveyed certain property to J. B. Romans, his son-in-law, and W. H. Laub, his son, taking from them a bond to reconvey on the payment by him to them of the sum of $8,000, the money advanced by them to him in the way of a loan. The two instruments together, it is conceded, constituted a mortgage; this form of transaction being resorted to because the property was already covered by two mortgages. On the back of this bond to re-convey the plaintiff wrote, signed, and acknowledged an indorsement thereof to Mrs. Mary E. Romans, his daughter, wife of J. B. Romans, and the instrument thus indorsed was delivered to Mrs. Romans and found among her papers after her death in 1900. In connection with this fl.ssignmp.-nt to Mrs. Romans, and as recited therein, she executed her promissory notes to the plaintiff for the total sum of $6,000, these notes being, in varying amounts and coming due at different times, and they were used as collateral by plaintiff, but before the bringing of this suit had been taken up by him and were in his hands, and they are now in court for cancellation. The assignment is- in the following words:
In 1903, W. H. Laub and J. B. Romans separately re-conveyed to plaintiff all interest held by them in the property, and Dolly Romans, one of the daughters, quitclaimed to plaintiff all right, title, and interest she had in the property as heir to her mother under the assignment, and this action is brought to have the assignment to Mrs. Romans declared to be a mortgage only, to secure accommodation notes which have been taken up by plaintiff and are tendered for cancellation, and to have his title quieted as against the remaining two heirs of Mrs. Romans. One of these daughters is represented by J. B. Romans, her father, as guardian ad litem; and R. A. Romans, brother of J. B. Romans, under letters of administration granted three years after the death of Mrs. Romans, intervenes in behalf of her estate, asking an accounting for rents and profits, etc.
. Plaintiff seeks to prove that the assignment to Mrs. Romans was by way of security for the notes for $6,000 executed to him by her, and which he claims were accommoda
Counsel for appellant contend, however, that the evidence as to the intention with which Mrs. Romans received and retained the assignment and the circumstances attending the payment of the proceeds of the property to plaintiff was wholly inadmissible, on the ground that plaintiff was seeking thereby to vary or contradict the terms of the written assignment purporting to make an absolute and unconditional transfer to Mrs. Romans of all remaining right of plaintiff in the property. Counsel do not contend, of course, that evidence is not admissible in equity to prove a conveyance absolute in form to be in fact a mortgage, with the effect that the grantor is entitled to redeem; but they contend that this can only be done by’ proof of independent facts and circumstances, and not by proof of mere intention or understanding of parties contrary to the specific language of
The facts and circumstances which counsel for appellant would recognize as admissible to show an instrument of absolute conveyance to have been intended for a mortgage are that there was the relation of borrower and lender between the parties continuing after the conveyance, that the grantor continued in the use and occupancy of the property, and the like; but we do not see that such facts and circumstances
The only evidence tending to contradict the presumption that would arise from the action of Mrs. Romans in allowing the rents, profits, and proceeds of the property to be paid over by J. B. Romans to the plaintiff is that afforded by the testimony of her husband that these payments to plaintiff were made by him under the direction of his wife with the understanding that they should be applied on the notes given by her to the plaintiff; but not only is this witness unable to indicate when or where or in what language any such direction was given to him by his wife, or that he communicated any such intention to the plaintiff at the time payments were made, but on the contrary, it appears from his own statement that he never directed these payments to be credited on the notes, or took any steps to see that such credits were made, and it appears from the notes themselves
Other witnesses testified over objections in behalf of plaintiff to declarations of Mrs. Romans tending to contradict the declarations testified to in plaintiff’s behalf as to the nature of the transaction; but, waiving for the present the legal objection that declarations of Mrs. Romans in her own interest could not be proven, although her declarations made contrary to her interest were admissible, we find on the whole evidence that the assignment to her was satisfactorily shown to have been intended and understood as made by way of security only, to protect her against liability on accommodation paper to the extent of $6,000 given to her father, and that, as no further liability on such paper exists on the part of her estate, the assignment has fully served its purpose and should now be canceled, and the title of plaintiff should be quieted as against the defendants.
The decree of the trial court is therefore affirmed.