167 Iowa 479 | Iowa | 1914
I. Patrick McNamara died intestate in 1898, leaving plaintiff, his widow, and several sons and daughters. He died seised of five hundred and sixty acres of land. In 1904 plaintiff and some of the heirs, including Elizabeth McNamara Nelson, purchased the interest of Wm. H. McNamara and received a deed therefor. They borrowed the money of one Svennesen to pay for the share of Wm. H., and executed their note and mortgage on one hundred and sixty acres of the land. The note was for $1,800, and the mortgage was not recorded. Plaintiff paid some of the interest on this note. J. F. McNamara, another heir, and a party to this suit, paid the principal and some of the interest. He paid in all the sum of $2,814.80 for the benefit of the other interests who had purchased the share of Wm. H. The last payment by J. F. was about August, 1911. The other heirs have not repaid J. F. for the money so paid by him. Plaintiff asks that such payments be made a lien on the shares of those who had signed the note and mortgage. This is not resisted by any of the parties except appellant Hauge. The widow has been in possession of the land for herself and the heirs from the time of the death of her husband to the time this action was brought.
In February, 1912, Della Eldridge began proceedings against Elizabeth McNamara Nelson and her husband, which action was aided by attachment. The writ was levied upon the undivided interest of Mrs. Nelson in all of the land
A drainage ditch tax had been assessed against the land, or a part of it, and after the sheriff’s sale a part of this drainage tax was paid by plaintiff, and she asked that this be made a lien upon the lands and the interests of defendants in connection with her own; that the money paid for the purchase price of the interest of ¥m. H. McNamara be made a lien upon the real estate, and that plaintiff and each of the defendants be required to pay their respective portions of said claim; that the claim of defendants Eldridge and Hauge be decreed to be a lien only upon the interest of Mrs. Nelson; and that said claim established against that portion set off to Mrs. Nelson.
Appellant, Hauge, claims that he had no notice of the Svennesen mortgage and the arrangement between the heirs until after the sheriff’s sale to him, although he admits he knew that Wm. H. McNamara had sold his share to the plaintiff and the heirs. This conveyance was shown on the abstract of title. Plaintiff claims that Hauge did have actual notice. The only dispute in the evidence is as to this point, and it will be referred to later.
The trial court confirmed the shares of the different parties, decreed partition, and that, as defendant, J. F. McNamara has paid the note and interest'(except the interest for one year, which was paid by the plaintiff), and that said mort
The interest in said land held by the defendant Hauge is only liable for its proportion of said latter sum, and that the plaintiff and the defendants are each required to pay the following amounts, respectively: A. 0. Hauge $351.85, . . . and that the respective amounts to be paid by each of them respectively be made a lien upon the respective tracts set apart to them; that a certain special ditch or drainage tax was assessed and levied upon said lands, of which tax the plaintiff paid, on March 22, 1912, $206.98, and on March 31, 1913, $171.12, which payments were necessary for the protection of said lands, and that defendants should contribute their just proportions thereof; that the payment of $171.12 was made after the sheriff’s sale of said lands, and the defendant A. 0. Hauge should pay his proportion thereof, $14.26, . . . and that said respective sums to be paid by each respectively as above stated be made a lien upon the real estate set apart to them.
Appellant relies upon section 2925 of the Code, which provides:
No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration, without notice, unless recorded in the office of the recorder of the county in which the same lies, as hereinafter provided.
As we understand it, counsel for appellees do not deny that such is the rule ordinarily, but contend that section 2925 and the rule of the cases cited does not apply in this case, because the plaintiff and the heirs were cotenants, and that Iiauge became one of them after the purchase by him of the share of Mrs. Nelson. The contention for appellees is that one who purchases land while it is in the actual possession of another takes it -with notice of all the existing rights and equities of the persons in possession, and defendant was charged with notice of the rights of the parties holding the mortgage that they were in the actual possession at the time of appellant’s purchase, citing Phillips v. Blair, 38 Iowa, 649, 656; Benbow v. Boyer, 89 Iowa, 494, 498. They also cite Rippe v. Badger, 125 Iowa, 725, and Pinckney v. Collie, 114 Iowa, 441, which, we think, rule in this case.
In the Pinckney case the question was in regard to an
In the instant case it is not so much a question as to whether Hauge had notice, of the Svennesen mortgage as it is whether J. F. McNamara, one of the cotenants, having paid the purchase price of the Wm. H. McNamara interest and the lien therefor created by the mortgage, is entitled to contribution.
The evidence is very nearly evenly balanced, but we would be inclined to hold that there is a preponderance in favor of plaintiff.
We conclude that the decree was right, and it is— Affirmed.