Rider v. Clark

54 Iowa 292 | Iowa | 1880

Day, J.

1. PARTITION pleading: counterclaim. I. Section. 3277 of the Code is as follows: “The action for partition shall be by equitable proceedings, and no joinder or counter-claim of any other kind shall be allowed therein, except as provided by this chapter.” The chapter provides that creditors having liens upon the property maybe made parties, and that the nature and amount of general incumbrances by mortgage, judgment, or otherwise, may be determined. Sections 3281 and 3284. At the time the mortgage was executed by Lucy Clark and the defendant William Clark, to T. M. Iiicks, to secure $1,030 borrowed money, Ezra Clark had no interest in the mortgaged land. The mortgage created a general lien upon the entire property, but no specific lien upon the portion of it which might fall to the share of Ezra 'Clark upon the death of his mother and partition of the property. The written agreement executed by Ezra Clark, in which he undertook to pay the borrowed money which had been given him, created a personal liability upon his part to his parents, but created no specific lien upon the portion ■ of the real estate which might afterward fall to his share by inheritance. As no lien was created upon Ezra Clark’s interest, in virtue of the written agreement, it follows that his share, or the share of his grantee, of the premises in controversy, cannot be diminished in consequence of the agreement, or made subject to the lien of the mortgage. If Ezra Clark has failed to pay the debt as he agreed, the demand must be enforced as a personal claini against him.

2___. • II. The taxes assessed against the land became a lien thereon. The lease attached as an exhibit to the seventh paragraph of the answer show's that Ezra Clark agreed to pay all the taxes accruing against the premises during the continuance of the lease. The answer alleges that he has failed to perform this agreement, and that all these facts were known to plaintiff before his purchase. As between Ezra and William Clark, Ezra is liable for these taxes, and, as they constitute a lien upon the premises, they should, as between Ezra, or his grantee with notice, and the defendant, be made a specific lien upon Ezra’s share of the property. See Metcalf v. Hoopingardner, 45 Iowa, 510. The court erred in striking out so much of the answer as pertained to these taxes.

III. The court overruled the motion to strike out the tenth paragraph of the answer, and thus allowed the claim growing out of Ezra Clark’s agreement to pay the Burdick mechanic’s lien to remain for appropriate adjustment in the final disposition of the case.

IY. It is urged that the court erred in sustaining the motion to strike out the seventeenth paragraph of the counterclaim, which is the prayer for relief. It is claimed by the appellee that it is evident that the court did not intend to include this paragraph. The appellee does not claim that this paragraph should have been included in the order, and as the cause must be reversed for other reasons, this point needs no further consideration. For the error before considered, the judgment is

Reversed.