19 Iowa 467 | Iowa | 1865
The argument against the demurrer is exceedingly astute and plausible, but fails to command our assent, as being a little to subtle and refined to suit the business genius of the times. We are satisfied that the nice, and we may add, far fetched, distinctions insisted upon by counsel never entered the minds of the contracting parties, and we prefer, because always safest, to keep tolerably close to the language of the contract, as the best exponent of the true intent of the parties.
The right which the mortgagor reserves to create another estate in the mortgaged premises, at any time when the value thereof exceeds the debt secured, is, to say the least, a most unusual one in instruments of this kind, if not, indeed, inconsistent with the granting clause therein, and therefore should not be indulged or permitted to be claimed, beyond the limits fixed for its exercise in the contract.
This limitation to the exercise of the right in question, quite excludes the idea that the parties ever intended that the mortgagor should, upon his own volition and valuation, as the city did in this case, without regard to this clause of the contract, undertake to create an estate in the property mortgaged in the Dubuque Harbor Company. If it was, the necessity of such a claim in the contract is not apparent.
The defense based upon this clause of the mortgage is, that it was given alone for the benefit of Jessup and Company, and not for their assignees, and that when the bonds were negotiated and passed from the ownership of Jessup and Company, it had fulfilled its office, and was in law, discharged, whether they had reconveyed to the city or not, and hence, in the answer, no such reconveyance is averred.
We think the more reasonable construction of the instrument, taken as a whole, including the above stipulation, is, that it was to stand as a security for the payment of the bonds, into whosesoever hands they might fall, until the
The stipulation is not that the mortgage should be void or the property reconveyed when the bonds should be assigned or negotiated, but it simply saves the right to Jessup and Company to reconvey the mortgage property whenever it should be their pleasure to do so. ■ They have not done so, and for all we lrnow or can know from the record, they may have agreed with the purchasers of the bonds, that they would not do so upon being themselves released from any legal responsibility. However this may be, the right or privilege to reconvey is personal to Jessup and Company, and the Dubuque Harbor Company is in.no position to claim any benefit from this stipulation in the mortgage. Besides all this, the use which the defendants attempt to make of the same in their answer, is more in the nature of a conclusion of law, than a statement of any facts constituting a defense to the right of the plaintiffs to recover.
Passing the subject of the demurrer, we notice next the other three controverted facts in the case.
First. Was the execution of the mortgage to Jessup and ' Company proved ?
Second. Could the court take j udieial notice that Patrick Quigley was President pro tem. of the city council at the time of the execution of the deed to the Dubuque Harbor Company ?
Third. Did the Dubuque Harbor Company have notice of the mortgage?
To each of these interrogative propositions we return an affirmative answer.
About the 15th of February, 1855, the city council received a proposition from Charles Gfregoire and H. L. Stout to make the contemplated improvement; the proposition was entertained and a committee of aldermen appointed to settle the terms and complete the contract. Of this committee, F. E. Bissell was the active member. After this, and before the contract was finally entered into, other parties were consulted and united with Gfregoire and Stout, as partners or joint contractors. On the 27th of February, 1858,' a written contract was executed between the city on -the one part, through its mayor, J. P. Farley, and on the other by Gfregoire, Stout, Emerson, Bush, Burt, Waples, Huff, Shields, Stewart and Burton, in which, for the consideration of certain work, to be done by the parties last named, the city stipulated to convey its title to certain real estate therein specified, being a portion of the
This is the substance of the testimony on the part of the plaintiffs, bearing upon the question of notice. That of
The defense insist that such of tbe parties as were tbns situated could not be affected by tbe notice, if any was given, first, because tbeir relation to one another was that of tenants in common, and not partners; but if it was that of the latter, the supposed notice was ineffectual in law to charge those who bought into the partnership subsequent to the formation of the same. It seems that some seven or eight days after the contract with the city had been signed by tbe parties above named, the defendants entered into written articles of association among themselves, defining tbe objectof the same and their several rights, duties and obligations. These articles clearly show the incidents of a legal partnership, and the fair presumption is that the same relation existed between them from tbe beginning, although it rested in parol. If, then, they were partners at tbe time tbe contract with the city was made, why are they not all affected witb tbe notice given to Stout and Gregoire of the existence of the mortgage? The reply is, that some of them cannot be, for tbe reason that they came into the concern about the time the contract was consummated, took no part in the negotiation, and heard nothing of the mortgage. The answer to this, again, is, that they nevertheless did become parties to tbe contract before it was finally executed, because they signed the same; and in doing so they adopted the contract, with all its advantages and disadvantages, as made by tbeir
But, again, it is said, that Earley and Bonson were not members of the partnership at the making of the contract with the city, but became so when the articles of association were executed. Granted; but does this fact change the legal position of the firm with reference to the notice ? They embarked at so early a stage in the same boat with the others, ere }''et, indeed, it had weighed anchor, that they took the chances of the whole voyage. It is scarcely necessary to say that the subsequent change of the association into a corporate body wrought no change for the better in their legal rights, so far as it relates to the question under consideration.
"We return, then, again to the question of notice: was it effected upon the defendants as a firm? We have already seen, from the authorities referred to, that notice upon one partner is binding upon all. We do not care to give any importance to the circumstance, that Farley and Stout were members of the city council at the time that the mortgage from the city to Jessup and Company was authorized to be executed. Their previous knowledge of the existence of the mortgage in this way is objected to, as not coming to them in the same transaction, and therefore not binding. We stop not to consider the soundness of this objection, as, in our judgment, the evidence without it is sufficient to fix the notice upon the defendants. We refer to the testimony of Bissell and Crawford. Their testimony is uncontradicted, yet it is attempted to be impaired and set aside on the score of being too uncertain and vague, because they are not particular to state just which one of the several parties spoke of the Jessup mortgage and what
Reversed.