Montpelier Savings Bank & Trust Co. v. Arnold

81 Iowa 158 | Iowa | 1890

Given, J.

1. mortgage-agreement!' evidence. I. It is not questioned but that, in receiving title from Arnolds and in conveying to Coffelt, th© firm of Parks & Olney assumed and agreed to pay the mortgage debt to Squire, trustee. The contention is, whether Parks agreed with Olney, for a consideration, that he would pay that debt. The testimony shows that they were equal partners ; that Parks’ means were limited compared to those of Olney, and that, in the exchange of properties with Arnolds, Olney put in about two hundred acres of his own land, valued at seven thousand dollars, and afterwards paid to Arnolds five hundred dollars, as against thirteen hundred dollars, and two years’ interest on the fifteen hundred dollars, paid by Parks. These facts are strongly corroborative of Olney’s claim that Parks agreed to pay the Squire mortgage on account of his share of the purchase price of the lands received from Arnolds. He is further corroborated by the fact that in their deed to Coffelt, and in the mortgage from Coffelt to Olney and Parks, it is recited that Parks assumed to pay the mortgage to Squire, trustee. The subsequent agreement between Parks and Coffelt that, upon Coffelt’s paying the Squire mortgage, Parks would release his mortgage from Coffelt, is also corroborative of what Olney claims. Parks contends that the recitals in the Coffelt deed and mortgages were because of the agreement between him and Coffelt; that Olney was not a party to that agreement; that it was for the benefit of Coffelt, and that Olney is not entitled to any rights under it. The facts do not sustain this claim. The agreement with Coffelt was not made until January, 1887, while the deed and mortgage were made in 1885.

■ Olney offered -in -evidence certified copies of the deed to Coffelt, and of the mortgage from Coffelt to Parks, to which Parks, objected as incompetent, and not the best evidence. We are entirely satisfied from the other evidence that Parks agreed with Olney to pay the Squire mortgage, and, therefore, without determining whether these copies were admissible, we do not consider them in passing upon the question now under notice. The testimony as to the settlement of the partnership is indefinite, and not such as, taken alone, would show that Parks assumed to pay the Squire mortgage, but, taken in connection with the other facts to which we have referred, we think it is established by decided preponderance of the evidence, that Parks did so agree, on account of his liability to pay half the par-chase price to Arnold.

a. — :—: ?eiiefes' II. Olney’s right to judgment and foreclosure on the notes and mortgage executed to him by Coffelt is fully established. The mortgage being upon part of the same land as plaintiff ’ s, though second thereto, gave him an interest in the subject-matter of the plaintiff’s action, and, having Parks’ agreement to pay the debt due the plaintiff, he has a cause of action against Parks relating to the same subject-matter, and which he may maintain in this action.

3 the same III. When Olney took the mortgage from Coffelt as second to plaintiff’s he had the agreement of Parks PW prior mortgage. Without that agreement he would only be entitled to the rights of a junior mortgagee, but with it he is entitled, as between him and Parks, to have Parks pay the prior mortgage. . Parks failed to pay it; hence, the plaintiff was entitled to foreclosure and sale, and Olney, as a junior lienholder,- to any surplus that might arise from the sale, and, as against Parks, to judgment for whatever amount he had to pay to protect his lien against plaintiff’s mortgage. It is contended that the decree of the district court grants relief not asked. We think the decree is in exact accord with the rights of the parties and with the prayer of the cross-petition.

4._;_re. credit on: judgment. IV. Upon the hearing of Parks’ motion to vacate and satisfy the judgment and decree, it was shown that the land covered by the plaintiff’s mortgage was sold upon special execution in favor of plaintiff; that the part covered by Coffeltf s mortgage to Olney was sold separately, and purchased by plaintiff ; that within the period for redemption Olney paid to the clerk the amount necessary to redeem the land covered by his mortgage and decree from said sale, but did not enter upon the record any statement of the ■utmost amount that he was willing to credit upon his judgment. Parks contends that, under the provisions •of the statute, this operates as a satisfaction of the judgment in favor of Olney, and that the same should be canceled. While Coffelt or his creditors might be heard to urge such a demand, surely Parks had no right to a satisfaction' of that judgment. Olney’s redemption was not a waiver or abandonment of his rights ■under the agreement with Parks. He was compelled to pay the amount that he did because of Parks’ failure to perform his agreement. So much of the motion as ¡asks that certain parts of the decree be vacated is sufficiently answered in what we have said as to the decree ■conforming to the rights of the parties.

We think the motion was properly. overruled, and that the decree of the district court should be affirmed.