119 Iowa 132 | Iowa | 1903
There is little dispute over the facts. The conceded ones are as follows: Defendants White-house owned the property in dispute on July 1, 1893, and ■on that day executed a mortgage thereon to plaintiff f'or the sum of $1,030, and another and second mortgage on the same property to the same person to secure notes aggregating $60. Raymond sold the $1,000 note and mortgage, and on the 25th of November, 1895, brought suit to foreclose the second mortgage. The Whitehouses had in the meantime, and on March 6, 1894, made a third mortgage on the same property to one Hamilton, to secure the sum of $600, and Hamilton had on the l¿th day of April, 1895, assigned this mortgage to defendants Kern & ■Scofield; this assignment having been properly recorded -on April 22, 1895, in the records of Plymouth county. Plaintiff made Hamilton a party to his foreclosure suit, but defendants Kern & Scofield were not made parties thereto, although, as will be observed, their assignment was «of record when the foreclosure suit was commenced. On
There are but two points of fact in dispute, and these are: First, the character of May’s purchase; and second when did plaintiff take the assignment of the $1,000 mortgage? As to the first point we find that May’s purchase-of the Hamilton mortgage and of the judgment and decree thereunder, was for value, in good faith, and in the belief that the $1,000 mortgage had been released. This purchase was on the 11th day of November, 1899, and the petition
The assignee of an ordinary judgment stands, as a rule, in no better position than his assignor. Burtis v. Cook, 16 Iowa, 194. But as said in Crosby v. Tanner, 40 Iowa, 136, in explaining the Burtis Case, this rule does not obtain as to equities residing in third persons. That case is, in principle, much like the one now before us. There a mortgagee, who had agreed that a subsequent mortgage given by his mortgagor should be prior and superior to the first, assigned his note and mortgage after ■maturity to a good-faith purchaser. That purchaser brought suit to foreclose, and the second mortgagee pleaded the agreement with the assignor. Held, that the assignee took his mortgage exempt from the equities of the second mortgagee. See, also, Blake v. Koons, 71 Iowa, 356; Bank v. Fletcher, 44 Iowa, 252; Vandercook v. Baker, 48 Iowa, 199. We need not further speculate on the rights •of an assignee of an ordinary judgment, for intervener is .-something more than that. He is the assignee of a mort.gage. True, that mortgage has gone to decree, but the ■decree partakes of the nature of the instrument on which it is based, and May should be treated as the assignee of
It must be borne in mind that we are not dealing with the law merchant, or with the rules ordinarily applicable to assignments of choses in action, but with the effect to be given our recording acts, and the rights of the assignee of a mortgage who relies on a recorded release; hence few, if any, of the cases cited by plaintiff’s counsel are in point. The precise question now before us seems to be ruled by Mather v. Jenswold, 72 Iowa, 550; Weidner v. Thompson, 69 Iowa, 36; Powers v. Latter, 73 Iowa, 283. In Vannice v. Bergen, 16 Iowa, 555 (85 Am. Dec. 513,) it is said: “If after such discharge [release of mortgage by merger or otherwise,] without notice of the fraud or [mistake,] and before the revival of the incumbrance, a third party should part with his money upon the faith of such discharge, it would be manifestly wrong and inequitable to permit the revived lien to be asserted as against such intervening rights.” Equity will not set aside the release
If intervener were relying on the doctrine of merger alone, it may be he should be held to notice of plaintiff’s equities. But he is not relying on the supposed intent of plaintiff. Here there was an express release of record when he purchased the Kern & Scofield mortgage, and plaintiff is .clearly estopped from saying that his mortgage of $1,000 was released through mistake. See Jones, Mortgages (3d Ed.) sections 605, 608, 966. Kern & Scofield had procured their foreclosure judgment and decree when plaintiff executed his release, and plaintiff was bound to knowledge of their judgment. The equities are clearly with the intervener. The trial court found that he was entitled to redeem on paying plaintiff the sum of $502.53,
As thus modified, the decree will stand affirmed. Plaintiff will pay the costs of this appeal. — Modified and affirmed.