Rice v. Hulbert, 67 Iowa 724

Rice v. Hulbert

67 Iowa 724 | Iowa | 1885

Reed, J.

s^per^eut ™s?sp°eciaiiy stated. In August, 1873, James Micldewait recovered a judgment in the district court of Mills county against M. L. Rice on a promissory note for $550.27, and for foreclosure of a mortgage on eighty acres of land, given to secure said note. This judgment wag subsequently assigned by Micldewait to the defendant, and after this assignment plaintiff received from M. L. Rice a conveyance of the land covered by the mortgage. The note on which the judgment was obtained bore ten per cent interest, but no rate of interest is expressed' in the judgment. In September, 1883, defendant caused a special execution to issue on said judgment, and was proceeding to sell the land thereon when plaintiff instituted this suit. Plaintiff alleges in his petition that he has paid the full amount of the judgment, and that defendant has refused to satisfy the same of record. Defendant denies that the full amount of the judgment has been paid. He alleges that plaintiff, when he purchased the land from M. L. Rice, had notice of the fact that the note and mortgage on which said judgment was rendered bore ten per cent interest, and that the amount of the indebtedness evidenced by said judgment, with interest thereon at ten per cent from the date of the rendition of the judgment, was deducted from the purchase price of the land,' and that plaintiff’s agreement with M. L. Rice was that he would pay the amount of the indebtedness to defendant, together with the interest thereon at ten *726j)er cent. It is also averred that the failure to express the rate of interest in the judgment was owing to an oversight or mistake of the clerk in entering it of record. Plaintiff has paid and defendant has received an amount of money which the former claims is sufficient to satisfy the judgment, computing the interest thereon at six per cent from the date of its rendition. There is some dispute between the parties as to whether the amount paid is sufficient for the purpose. Wc think, however, that a fair preponderance of the evidence shows that plaintiff has paid the amount of the judgment and six per cent interest thereon.

The important question between the parties is whether plaintiff, having paid that amount, is now entitled to have the judgment satisfied of record. By its terms the judgment bears but six per cent interest. It is provided by statute (Code, § 2078,) that “interest shall be allowed on all moneys duo on judgments and decrees of any competent court or tribunal at the rate of six cents on the hundred, by the year, unless a different rate is fixed by the contract on which the judgment or decree is rendered, in which case the judgment or decree shall draw interest at the rate expressed in the contract, not exceeding ten cents on the hundred, by the year, which rate must be expressed in the judgment or decree.” Under this provision, it is clear that, unless a different rate of interest is expressed in the judgment or decree, but six per cent can be collected on it. As the contract on which the judgment was rendered bore interest at ten per cent, Micklewait was entitled to a judgment bearing that rate, and, if the failure to express that rate in the judgment was owing to the oversight or mistake of the clerk, as is alleged, he had the right, doubtless, by timely and proper proceedings, to have the error corrected ; and possibly defendant had the same right after he became the owner of the judgment. But these considerations are not now important. The correction never was made, nor have any proceedings been instituted looking to the correction of the judgment. The judgment, then, is con-*727elusive of the rights of the parties under the contract on which it was based. It is, in effect, a judicial determination that the plaintiff therein was entitled to collect but six per cent interest on the indebtedness evidenced by it. As plaintiff, then, has paid the full amount of money which defendant was entitled by the terms of the judgment to collect, it is clear that the lien upon the land created by it is extinguished. It is insisted, however, that plaintiff knew when he purchased the land that the note and mortgage upon which the judgment was rendered bore ten per cent interest; and that, in effect, he agreed to pay the debt due defendant, together with the interest thereon at ten per cent, as part of the purchase price of the land; and that he is not entitled to have the judgment canceled until lie performs this undertaking. "Whether this result would follow as a conclusion from the facts alleged, we need not determine; for we think the evidence fails to establish those facts.

2. VENDOR píir olíase sur - ifaurntyo? vendee. It is proven, we think, that plaintiff knew when he bought the land that defendant claimed that his debt bore ten per cent interest; but it is' not proven that he ’ r ' ' exPress^y agreed to pay the debt, either prineipal ov interest. He held a mortgage on the land which was junior to the judgment, and he took a conveyance of the land by quit-claim in satisfaction of liis debt. There were other liens upon it, in addition to defendant’s judgment, which were senior to his mortgage. • It was to his interest to pay off these liens, but he did not expressly agree to pay them. He simply took the land subject to them. He did not thereby become bound to pay them. Johnson v. Monell, 13 Iowa, 300; Aufricht v. Northrup, 20 Id., 61; Hull v. Alexander, 26 Id., 569; Lewis v. Day, 53 Id., 575. There are therefore no equities in defendant’s favor created by the contract for the purchase by plaintiff of the land which will defeat his right to have the judgment canceled.

Affirmed.