Reynolds v. Morse

52 Iowa 155 | Iowa | 1879

Seevers, J.

1 BioitTGAGEtioiv vendor's lien* I. Mrs. Morse was not a party to tlie note:, It was transferred to tlie plaintiff by the paj^ee and we are satisfy Rm mortgage was executed in pursuance °f the contract of purchase. Mr. Morse in sub-stance so testifies.. This constituted a sufficient consideration as to both the Morses, because the mortgage was executed in accord with the previous contract, and as the note ivas given for a part of the purchase money it constituted a vendor’s lien in the hands of Reynolds on the premises. In recognition of, and to make such lien a matter of record the mortgage was executed. No new or additional consideration was required to support it. That the assignment of anote given for the purchase money carries with it tlie lien of the vendor was held in Blair & Co. v. Marsh et al., 8 Iowa, 144, and Bills v. Mason, 42 Id., 329.

2___ homestead, II. The mortgage is in the ordinary form, and Mrs. Morse therein expressly relinquishes her right of dower, nothing* being said in relation to the homestead.

In Babcock v. Hoey et ux., 11 Iowa, 375, and O'Brien v. Young, 15 Id., 5, it was held that it was not essential to the validity of a mortgage executed by both husband and wife, on property occupied as a homestead, that it should be described as such, or that it should be stated the mortgage was made with reference to such fact. There is no distinction between those cases and the one at bar. By the execution of tlie mortgage the premises are pledged for the payment of the indebtedness by parties having the power to convey, and this is sufficient. Code, section 1993.,

III. The name of Eliza Fuller was signed to the note before the mortgage was executed, because the plaintiff' required it before he would purchase the note as additional security. Did'D. B. Morse have notice of such fact, and as-, sent or fail to object thereto?

On one side there is the affirmative evidence of Mr. Fuller, and on the other the negative evidence of Mr. and Mrs. Morse.

Mr. Fuller is quite positive he told Morse he and Eliza Fuller would have to.sign the note if he sold it to the plaintiff, and that Morse said it was all right. Mr. Morse testifies he has no recollection of ever talking to Fuller about the note in suit, but says he remembers conversing with him about another note. Mrs. Morse was not present at all the conversations, and it is evident from her evidence she did not pay much attention to the one had in her presence. •

Mr. Fuller states several things which induce us to conclude he is not mistaken, and that he had conversations with Morse about the note in suit. -This being so, he is substantially uncontradicted as.to the pivotal question, whether Morse was informed as to the necessity of the note being signed by one ■or both the' Fullers, and that he said it would be all right to •do so. Whether Mrs. Morse had such knowledge is immaterial, for the mortgage is valid if the note is -enforceable against Morse.

Affirmed.