55 Iowa 756 | Iowa | 1881
— We have the usual controversy whether or not this is an equitable action, triable anew upon appeal in this court. We think it is. The answer of Seeberger and Kremling to the petition of intervention seeks to rescind the contract of exchange, compelling Hobert to surrender the goods and receive back the mortgages which he gave in exchange for them. The trial was by the court and the decision of the comb is designated as a decree, and it is in the nature of a decree.
Seeberger could not maintain the action to rescind the sale. He had no such interest as authorized him to do so. But the action could be maintained by Kremling, and he does in effect institute such action by his answer or cross-petition. The fact that he joined Seeberger with him might have been ground for raising the question of a misjoinder of parties in the court below. But that question is not before us.
The whole case, it seems to us, turns upon the representations which were made by Hobert to Kremling at the time the exchange was made. Kremling claims that Hobert represented that the mortgages were first mortgages, that they were first class mortgages, and that they could be readily discounted for cash at a small discount. Hobert admits that he represented that the mortgages were first mortgages on the land described therein, but denies any further representations. A careful examination of the record satisfies us that. Kremling has not shown, by a preporderance of evidence, that any representation was made except that the instruments were first mortgages'. We are further satisfied from the evidence that Kremling has not shown that this representation was false. It is insisted that a mortgage is not a first mortgage unless there was title in the mortgagor when the mortgage was executed. The ready answer to this is, that we do not think that Kremling has shown that the mortgagors did not have title. . It appears from an abstract of' title of the lands in Shelby county, in this State, that the mortgagor held a tax title. Whether it was a good title or not does not appear. An abstract of title of the Missouri land was offered in evidence, but it appears from appellee’s abstract, which is nob denied, that said abstract of title was objected to and the objection was sustained. But even conceding that it should have been admitted in evidence, it shows upon its face that it was incomplete and imperfect, and the officer who certified thereto stated in his certificate that part of the records of the county had been destroyed by fire.
It is unquestionably correct, as claimed by counsel for appellants, that equity will grant relief where false representations have been made, although the party making the representations did not know whether they were true or false, or where they were made through mistake or innocently, if the purchaser relied on them and was induced thereby to enter into the contract. Wilcox v. Iowa Wesleyan University, 32 Iowa, 367; Sweezey v. Collins, 36 Id., 589.
But in this case it does not appear to us, or at least it has not been shown, that Hobert made false representations, whether intentionally or otherwise. Besides the alleged false representation as to the discounting of the mortgages is not set forth in the answer, and it may well be questioned whether such a representation, as well as the alleged representation that the securities were first class, were not mere matters of opinion as distinguished from
Affirmed.
