155 Iowa 108 | Iowa | 1912
The defendants Jackson are husband and wife. The mortgage covered a -small tract of real estate situated in Wapello county, and owned by these defendants,
The defendants set up the following affirmative defenses :
(1) Deny that they or either of them are indebted to plaintiff in any sum whatsoever.
And for affirmative defense to the claims of plaintiff ■said defendants assert:
. That the tax sale of said lot 2, etc., by deed of date April 12, 1909, was and is valid. That notice of expiration of time to redeem from said sale was served as by law required upon said Edward Jordan by reading the same to his wife and leaving a copy of same with her for ■ said Edward Jordan at the home of the latter in said city of Ottumwa by Morris W. Christie as agent for and on behalf of said Dora L. Cook, the purchaser at said tax sale and the owner of such certificate, and said defendants pray that, upon the trial of this action, the return to said notice of expiration be corrected and amended in accordance with the facts. That said notice was filed and verified and recorded as required by law, and such record shows completed service of said notice, as said defendants are informed and believe and charge the facts to be.
(2) That on or about February 21, 1894, defendants traded said real estate lots 1 and 2 etc., Egan’s First addition to Ottumwa, to one L. O. Montgomery, subject to the mortgage involved herein. That thereafter, by letter
(3) That by the terms of said mortgage the mortgagee was authorized to see to the payment of taxes on said property, and it was his duty to not permit such property to be sold at tax sale for nonpayment of taxes. That, when such property was sold by defendants to said L. O. Montgomery by and with the consent of said Alois Schafer, defendants were thereupon by operation of law and the implied agreement of the parties relieved from the duty of paying taxes on said property. That said Alois Schafer by his laches, and neglect failed to discharge this duty to see that the taxes on said property were paid, and carelessly permitted same to go to tax sale, thereby defeating the lien of said mortgage upon said lot 2. That defendants relied upon said Alois Schafer to discharge his duty of seeing that said taxes were paid, and believed that he had done so and did not know otherwise, and were under no duty to know otherwise, until this suit was instituted, and said defendants had the lawful right so to rely, and said Alois Schafer knew that they were relying upon said L. O. Montgomery and Alois Schafer paying said taxes, and by such conduct on the part of said Alois Schafer said defendants were induced to forego measures they could and would at the time have taken to prevent the loss of said property at tax sale and avoid the defeasance of said mortgage. Whereby said Alois Schafer, and plaintiff as his representative, is by his conduct estopped from asserting said note and mortgage against defendants.
(4) That by the terms of said mortgage the mortgagee was authorized to keep the improvements on said real estate insured. That with the money received from said Alois Schafer upon said note and mortgage defendant
(5) That, after said defendants by and with the knowledge and consent of said Alois Schafer had transferred said property to said L. O. Montgomery, one of the three houses was purchased and removed from said land by a party by name of Kitterman, without the knowledge or consent of defendants. Whether said Kitterman purchased the same and removed it by and with the knowledge and consent of the then owner and also of said Alois Schafer these answering defendants do not know, but suffice it to say that said house was at that time subject to this mortgage, and it was the duty of said Alois Schafer to hold said house and its proceeds subject to said obligation and to exercise
(6) For further answer, these defendants say: That this suit was instituted December 24, 1902. That defendants were then" living within the state of Iowa, in the city of Des Moines, as was open and notoriously and generally known, and for practically nearly the whole of said intervening- time, as well as from the time said note and mortgage were executed July 13, 1891, they have continuously lived in said state. That plaintiff made no reasonable endeavor to bring these defendants into court until the August, 1910, term of court. That if they had been brought into court promptly at the time the suit was instituted, as should have been done (and there was nothing to prevent and no good reason why this should not have been done), these defendants could have exercised measures on their own behalf to have protected them against said note and mortgage by having recourse upon said L. O. Montgomery or his assigns, remedies which have since been lost to them by the death of said L. O. Montgomery and by the laches, indifference, and neglect of said Alois Schafer and plaintiff his representative. And because of such laches, and because said Alois Schafer and plaintiff as his representative have slept upon his rights to the great prejudice of
(7) That said note and mortgage are barred by the statute of limitations.
These defenses and some others not pleaded are vigorously pressed in argument.
We will consider them substantially in the order of their pleading.
II. The second defense is based upon an alleged extension of. time of payment to the purchaser Montgomery without the knowledge or consent of the answering defendailts- This defense is fully disposed of by the instruments of evidence introduced by the defendants themselves. A written contract of sale was entered into on February 21, 1891, between these defendants and Montgomery; and the same was introduced in evidence by the defendants. One of the undertakings therein of these defendants was to “get an extension of loans three to five years on the above described mortgages.” Under date of July 13, 1891, the mortgagee wrote Montgomery that he had made the extension “as you requested.” Defendants make the argument that the extension was made upon the request of Montgomery, and not upon their request. Not only did the defendants fail to testify that they had not requested or consented to the extension, but their contract whereby they^undertook to get the extension is quite conclusive upon the question of consent.