182 Iowa 209 | Iowa | 1916
“2. I will and direct that the support and maintenance of my feeble-minded daughter, Maggie Cotter, and the support and maintenance of my daughter Mary Kent, shall be a charge upon all of my property so long as they or either of them may live. Said support to be upon the farm where I now live, and such support to be such as in my lifetime I gave to my said daughters at my home.
“3. I will and direct that my said daughter, Nora, after she is able from the proceeds or rent of my farm to pay off and discharge the mortgage now on the same, and pay all other debts existing against my estate, she. pay lo my daughter, Mrs. Kale Halloran, the sum of five hundred dollars.”
“Contract.
“This agreement, between William Halloran and Kate Halloran, parties of the first part, and Nora McGuire, party of the second part, witnesseth:
“That in consideration of the first parties taking up the mortgage of the First National Bank of Rock Rapids, and*212 certificate of sheriff’s sale and taxes on the East 54.39 acres of the Southwest Quarter and the West 80 acres of the Southeast Quarter of Section G, Township 99, Range 44, the second party agrees to repay to said first parties all money paid by said first parties as above, and to pay said first parties for keeping Maggie Cotter the sum of $12 per month, and the sum of $500 in lieu of the bequest to Kate Halloran under the will of Roger Cotter, and all taxes paid by the first parties on said premises with 8 per cent per annum from October 1, 1908; the first party is to credit the second party on said sums, the sum of $415 per year as a rental on said premises. If the mortgage of $2,500 now on said land as a first mortgage shall not be paid at the time the second party takes the said land, as herein agreed, she shall take the land and pay all said sums above named, subject to said mortgage, and if said mortgage shall have been paid by the first parties, the same shall be paid by the second party in addition to the other sums as herein provided for. If the said second party pays said sums as herein provided within three years from this said date, the first parties shall deed said premises to whomsoever the second party may direct, but if the second party fails to pay said sums within three years from the date hereof, then this contract to be void, otherwise to be in full force and effect. Time being the essence of this contract. The first party may make necessary permanent improvements including tiling on said premises which the second party shall pay for at actual cost with 8 per cent interest from the time actually paid.
“The second party, in addition to the other sums herein provided is to pay the first party the sum of $130 for keeping Maggie Cotter from March, 1907, to the present time.
“The first party to account for the rent received by him for the year 1907. Second party to reimburse first parties*213 for interest paid on first mortgage on said land in addition to the other sums above provided for.
“Dated October 1, 1907.
“Wm. Halloran,
“Kate Halloran,
“Nora McGuire.”
After the execution of the foregoing contract, and the expiration of the year of redemption from the foreclosure sale, the sheriff executed a deed to the First National Bank of Rock Rapids, which was then the holder of the certificate of sale, and soon thereafter, the bank conveyed the land, by special warranty deed, to William Halloran, the only consideration paid being the aggregate amount of the plaintiff’s indebtedness on the claims held by Miller and the bank. By the terms of said deed, Halloran assumed the payment of the first mortgage lien of $2,500. Pursuant to the contract, defendants assumed control of the land and the care and maintenance of the sister Maggie. On March 2, 1914, the defendants served upon the plaintiff a paper entitled, “Notice of Declaration of Forfeiture.” This instrument, after reciting the making of the contract above quoted, proceeds to address the plaintiff and her husband as follows:
‘‘You, the said Nora McGuire, and Marcus McGuire, are hereby notified that the said Wm. Halloran and Kate Halloran hereby declare their intention to forfeit said contract against the said Nora McGuire for the reason that the said Nora McGuire did fail to comply with the terms and conditions of said contract and failed to pay to the said Wm. Halloran and Kate Halloran the sums named in said contract as required by her to be paid within the three years from the date of said contract, and said contract is hereby declared to be forfeited and all rights thereunder held or claimed by the said Nora McGuire, are hereby forfeited. The declaration of forfeiture is hereby made for the reason*214 that the said Nora McGuire has no rights under said contract, and that all right she had thereunder, terminated and expired by reason of her failure to make payments under said contract, and perform the conditions thereof, within three years from the first day of October, 1907.
“The said Wm. Halloran and Kate Halloran now declare that said contract and all rights thereunder in favor of the said Nora McGuire are fully forfeited, and that the said rights were so forfeited three years after the 1st day of October, 1907, and that this notice of forfeiture is only served because the said Nora McGuire.has claimed some rights under said contract, and not because she in fact had any rights or privileges thereunder at this time, and that after the lapse of thirty days from the date of the service hereof such alleged claim or claims that the said Nora McGuire has or claims to have will be so fully terminated and forfeited as is provided by law.
“Dated this 28th day of January, 1914.
“Wm. Halloran,
“Kate Halloran.”
The plaintiff has paid no part of the several sums or obligations mentioned in the contract of October 1, 1907. Soon- after the service of the notice just mentioned, plaintiff brought this action to redeem the land from the claims of the defendants, and to compel a conveyance of the legal title to her. In addition to the matters hereinbefore recited, she alleges in her petition that, in the spring of 1907, being unable to support herself and sister Maggie, and pay the obligations imposed upon her by the will of her father, out of the income of the land, she leased it to Patrick Cotter for the current year, at the agreed rental of $415, and with her husband removed to South Dakota, where they made a homestead entry upon the public domain of the United States, having first arranged with the defendants to maintain and care for Maggie, and provided for pay
In answer to the petition, defendants admit that plaintiff acquired title to the land by virtue of her father’s will substantially as alleged; but say that, through lack of proper management and care, she allowed debts to accumulate, and paid nothing on the mortgage liens or on the legacy provided in the will for Mrs. Halloran, and, when the-Miller mortgage was foreclosed and the land sold, she was wholly unable to redeem therefrom, and appealed to the defendants for help, and besought them to take title to the premises, assume the liens thereon, and “give her the further opportunity to secure and keep the land,” and that, for such purpose, the contract of October 1, 1907, was made. They aver that the purpose and effect of the agreement was that William Halloran should take title to the land, subject only to the prior mortgage of $2,500, and to the right of the plaintiff to repay the said William Halloran, within three years from that date, the amount of his advances made for the purpose of taking up the indebtedness to Miller and the bank, and other sums mentioned in the contract, amounting in all to $4,000 or more. They furthei; allege plaintiff’s failure to make payment of any of the sums secured by the contract, her failure to maintain and care for the sister Maggie, and allege that, before declaring a forfeiture of the contract, they offered to reconvey the land to plaintiff upon
After hearing the evidence, the court found for the defendants, and entered judgment against the plaintiff for costs.
Upon the main facts of the case, there is little dispute, though there is considerable difference between the parties on some matters of detail. None of the disputed questions of fact are of controlling importance in determining the nature and effect of the contract between the parties. On both sides, evidence was introduced bearing upon the understanding which the parties had of the purpose sought to be effected by the contract. This was, perhaps, competent, as bearing upon the question whether the title to the property was to be held as security for the plaintiff’s debt; but it adds little, if anything, to the apparent effect of the writing itself, though the circumstances attending it are of some importance, as 'aids to its construction. It appears that the time of redemption from the foreclosure sale was nearing its expiration when plaintiff came back from South Dakota and these negotiations were had with defendants. The parties had a meeting with defendants’ counsel and other persons representing the bank, which then
“We agreed to give Nora three years more to redeem. * * * The land was to be deeded to me. It was deeded to me, and I have since held and' farmed it.”
He further says: “I at all times stood ready to turn over the property by deed, if they paid me the amount I had expended under the contract.”
About October 1, 1910, the time the stipulated period of three years expired, Halloran made out a written statement to plaintiff, covering the time Horn October 1, 1907, charging her with the amount paid the bank, increased by other charges for keeping Maggie, for taxes paid, interest on first mortgage, “miscellaneous repairs,” and the amount of Mrs. Halloran’s legacy under her father’s will, making, with interest, a total of debts of about $5,877, against which he allows credit for the rent of the land. The difference thus found, he styled, “Bah to redeem $4,272.42.” There was some dispute over the correctness of this account. Plaintiff claims to have offered to-pay $3,500, and that Halloran refused to accept less than the sum demanded. This the defendants deny, and the truth of the matter we need not attempt to determine. It is sufficient to say that no agreement was made or acted upon, and the differences between the parties finally culminated in this litigation.
We have read this contract repeatedly and with much care, to derive therefrom, if possible, the real essence of the agreement which it evidences. Though, as we have said, the language is not obscure, yet it lacks somewhat in definiteness of expression. It nowhere speaks, in terms, of a sale or transfer of the land, or of any interest therein. It places no price or value on the property. Neither, on the other hand, does it, in terms, speak of a loan'to the plaintiff which she undertakes to pay. It does, however, provide with sufficent clearness that Halloran will advance or pay out for plaintiff’s benefit the money needed “to take up the mortgage of the First National Bank of Rock Rapids and certificate of sale and taxes” on the described land. In consideration of this undertaking, the plaintiff does expressly agree “to repay to said first party all money paid by said first parties as above,” and in addition thereto, certain other charges. Thus far, the situation is too clear to be open to serious argument. The defendants bind themselves to advance or pay the money necessary to take up the bank’s mortgage and the sheriff’s, certificate and the taxes on the property, and plaintiff, in consideration thereof, unequivocally and unconditionally promises to repay these amounts, with interest. Were this all, no cine would hesitate to say that the effect of the agreement was to create between the parties the relation of debtor and creditor, or borrower and lender. Do the subsequent stipulations found in the paper necessitate any different conclusion? In our judgment, they do not. After providing, in reasonably clear terms, for
“If the said second party pays said sums as herein provided within three years from date, the first parties shall deed said premises to whomsoever the second party may direct; but if the second party fails to pay said sums, then this contract to be void, otherwise to be in full force and effect.”
Should this clause be given any greater force and effect in this contract than would be given it if embodied in an ordinary mortgage? In a mortgage, it would be held to mean no more than that, when cause arises for the so-called forfeiture, the mortgagee may declare the debt due, and proceed to foreclose his lien according to the forms of law. Unless such be the meaning and effect of that clause’ in this contract, it would seem to have none. The literal language of the. provision is that, if plaintiff fails to pay within three years, “then this contract to be void.” Not any particular stipulation, but the entire agreement is to be thus rendered void, and if void, then neither party can base any claim of right thereon. Certainly, such was not the intention of the parties. Taken as a whole, the entire force and effect of the agreement is that defendants will furnish the money to “take up” the claims then being pressed against the plaintiff and her property, and give her three years in which to pay the debt so created in defendants’ favor. Nothing is said in express terms to the effect that defendants shall take the legal title to the land, or shall hold it as their security; yet, when construed in connection with the existing circumstances, and the provision made for a reconveyance on payment of the debt, we think it fairly implied that defendants were expected to take the title under the sheriff’s sale and hold it in the nature of a mortgage security, and we see no escape from the conclusion that plaintiff is entitled to redeem therefrom. That defendants did not under
It follows that the decree of the district court must be reversed.
On the other hand, he should be charged with the agreed annual rent of the land from the time when he went into possession to the commencement of this action, and thereafter at the reasonable and fair valuation of such use and enjoyment until he shall surrender possession. If on the trial, it shall develop that there are other alleged charges or credits claimed by the parties, or either of them, the court will determine them as shall appear to be just and equitable, and within the scope and intent of the contract. Care is to be taken at all times to .preserve the priority of the charge upon the property in favor of Maggie Cotter.
Reversed and remanded.