Page v. Cole, 6 Iowa 153

6 Iowa 153 | Iowa | 1858

Woodward, J.

— The prominent question here made, notwithstanding the special matter brought to view, is in reality whether an equitable title, or defence, can bo set up against the legal title.

This has been so frequently decided, and has become so settled doctrine, that it needs no argument. The long established rule is, that an equitable title is no defence against the legal one, in an action at law; Smith v. Allen, 1 Blackf., 22; Jackson v. Pierce, 2 Johns., 221; Jackson v. Chase, Ib., 84; Jackson v. Longhead Ib., 75; Jackson v. Deyo, 3 Ib., 422; Jackson v. Van Slyck, 8 Ib., 487; Adams on Ejectment, 31, (note).

The defendant makes no question as to his right to notice to qidt. The plaintiff lias given notice, and there is no controversy on this ¡mint.

The defendant’s argument is brief, and not very clear in its object. The purport of it seems to be, to show that plaintiff cannot maintain an action at law, but must go into chancery. It is, that by virtue of the Code, sections 2094, 2095, and 2068, the parties are, in effect, mortgagor and mortgagee; and that plaintiff must proceed to foreclose as in case of mortgage; and that by section 1210, the defendant is entitled to possession until foreclosure. But these sections have not been understood to compel the vendor to pursue the course there indicated, in all conditions and circumstances of the case. They do not take away his other rights, and are probably but an expression of the common law; or, at most, they only provide for certain matters, in case he resorts to that remedy.

The only ground remaining, which it seems 'probable that the defendant could intend to take, is one indicated by the pleading, rather than the argument, and that is, that the plaintiff cannot maintain ejectment, until he returns the promissory notes, and the consideration paid; in other words, until he rescinds the contract. But this ground is not tenable. Admitting the parties to hold the relation of mortgagor and mortgagee, the latter may maintain ejectment against the former, at least after forfeiture. Adams on Ejectment, 60. And farther: to say that the plaintiff may not maintain his action at law, to recover the possession, until he has tendered back the notes, and the money received, is to say that an equitable title may be set up against the legal one, the contrary of which is well established, as is above remarked; but it is true that such recovery settles nothing but tlie present right of possession, and leaves the vendor with his right in equity, under the contract of sale, to which he may resort, notwithstanding such recovery; and the plaintiff, in his argument, claims no more than this.

Of this character, was the case of Longworth v. Taylor, 1 McLean, 392. Taylor, the vendor, had recovered possession in ejectment, and the vendee afterward filed his bill to be permitted to perform the contract, or to enforce performance by tlie vendor, and it was decreed. The cases first cited in this opinion, are of the same kind with the present. They are Smith v. Allen, 1 Blackf., 22, and Jackson v. Pierce, 2 Johns, 226, in which there was an agreement, in -writing, to sell. Jackson v. Chase, 2 Johns. 84, was a case of mortgagee against a mortgagor. Jackson v. Langhead, 2 Johns. 75; Jackson v. Deyo, 3 Johns., 422. In this case, the consideration was all received, and it was an absolute covenant to convey. Jackson v. Van Slyck, 8 Johns., 487. In this, the defendant offered to show that the jdaintiff, in purchasing, had acted as liis agent.

On whichever of these grounds the court concurred with the defendant, we think there was error. Tlie third ground of dermurrer was properly .overruled; and the fourth was passed over, probably, as containing some mistake, which rendered it ambiguous or else inapplicable.

Judgment reversed, and cause remanded.