Richards v. Crawford

50 Iowa 494 | Iowa | 1879

Rothrock, J.

i. moktgact: áeed absolute. The action of J. H. Crawford v. Richards ds Burden, 42 Iowa, 260, was between the same parties and in. "the same rights as the action at bar. What'ever rights of the parties were adjudicated in that action were settled forever, and cannot now be disturbed. It was there determined that, although the conveyance front Henry Crawford to Taylor was intended as a mortgage, yet by reason of the statute of limitations Crawford could not redeem. The legal effect of the adjudication was that,by reason of the bar of the statute, Crawford was precluded from showing that the deed of warranty was intended as a mortgage. In what better position he can be by pleading the-same facts as an equitable defense to the plaintiff’s action for the possession of the land we are unable to determine. It must' be remembered that this is not a statutory mortgage. It is in form a deed in fee simple absolute. An action for the possession of the land could have been maintained upon it,, subject to the defense which equity allows to be interposed, that it, with the bond, was intended merely as a mortgage.. This defense is in its nature affirmative, and if an action to redeem could not be maintained by reason of the statute of limitations, neither can the defense.

The doctrine of the cases relied upon by counsel for defendants is that the rights of the . parties are the same, whether the mortgage be such in form, or in the form of a conveyance of the legal title. This may be admitted, with this distinction, however: By a statutory mortgage the legal title remains in the mortgagor. By a conveyance of the legal title to secure the payment of money the grantor reserves the right in equity to redeem the property, and against an action at law for the possession of the land he may interpose his equitable defense. Burdick v. Wentworth, 42 Iowa, 440. That the legal title was vested in Taylor by the conveyance from Henry Crawford, must be regarded as settled in this State. Farley, Norris é Go. v. Goocher, 11 Iowa, 570; Bur-dick v. Wentworth, supra. The legal title must prevail unless the equitable defense is interposed. It having been adjudged in the former action that Crawford’s right to redeem is barred by the statute, that judgment is an end of the controversy.

Affirmed.