143 Iowa 629 | Iowa | 1909
The plaintiff alleges, in substance, that he gave a mortgage on certain real estate to the defendant to secure the payment of a stated sum of money, and that thereafter, the debt being unpaid, he conveyed the mortgaged property to the bank in payment of said debt, upon the express consideration that he might redeem or sell the property within one year, in which event the bank would reconvey the same, upon payment to it of $2,100 and interest. He alleges that within less than one year he did find a purchaser, and was ready and offered to pay to the bank the sum so agreed upon, and demanded a reconveyance of said property, which was refused, wherefore he comes into court, tenders the payment of what may be found equitably due said bank, and asks that a reconveyance may be decreed. The defendant denies the allegations of the petition.
We are of the opinion that this finding cannot be approved. The direct and circumstantial evidence unite to sustain the proposition that in the settlement made with plaintiff and his wife Bernstrom, the cashier was acting as the authorized representative of the bank. Moreover, the defendant cannot be heard to deny the authority of the cashier while receiving and retaining the benefits of the contract made with the plaintiffs. That he did assure and promise these people that they should have the right to a reconveyance off the title to them, or to their purchaser, upon payment of $2,100 and interest within one year, and that upon consideration of such’ promise the deed was made, is shown beyond reasonable doubt. There is no ambiguity or uncertainty of terms to prevent the interference of a court of equity. The testimony in support of the plaintiff’s claim stands undenied, except as a matter of pleading. The suggestion is made that the expression used by the cashier in his letter of August 23, 1905, “I will guarantee you individually that at any time within a year you may have the property back by paying the mortgage notes and interest,” indicates that the agreement to reconvey was merely his private personal undertaking, and not intended to bind the bank. The reasoning is not persuasive. In the first place the language by itself and standing alone indicates not an original independent obligation, but rather the addition of his personal guaranty to the obligation or agreement of the bank, while, if we read the letter in the light of the entire series of com
. For the reasons stated, the decree of the district court must be reversed; and, as it indirectly appears in the evidence that a .part of the property has been sold by the defendant, and it may be found upon further examination that a reconveyance cannot be had, thus rendering necessary the granting of alternative relief, and accounting for rents and profits, the cause will be remanded for a decree in harmony with this opinion. — Reversed.