58 Iowa 252 | Iowa | 1882
The defendant, R. W. Day, made a written application to J\ B. Watkins & Co., who were described therein as his agents, for the purpose of procuring a loan on certain real estate owned' by Day. The real estate was described as being in the northwest quarter of section 28, town. 14, range 35. The extent of the improvements and value of the land was stated with particularity in the application, which was verified by Day. Attached to, and forming a part thereof, was the affidavit of Isaac Dickerson, in which he stated he was well acquainted with the premises and the same were worth $3,600, exclusive of perishable improvements. The plaintiff, through Watkins & Co., loaned Day,
That neither of them knew of the mistake, and that Day had no title to the land described in the mortgage, must be conceded, for if they had, undoubtedly, they would not have accepted the mortgage.
The loan was made upon the belief Day owned the land described in the mortgage, and that it was the same as that described in the application. This must be so, for there is no other evidence tending to show any other tract of land was contemplated. If a person contracts for a certain thing or parcel of property, and unknowingly accepts a different thing or property, this must in the nature of things be deemed a mistake, as to which equity will grant relief. The mortgage the plaintiff expected and contracted for when she made the -loan, based on the application she did not get. Now, in the absence of evidence to the contrary, what inference should be drawn? Either that she knowingly accepted something she did not contract for, as to the value or ownership of which, she had no knowledge, or that she accepted it by mistake. The latter, we think, because such an inference is in accord with a settled and universally acknowledged • business principle. It is said the mistake in drawing the mortgage has not been established. We think it has, when both parties thereto supposed and intended a different parcel of land to be described therein. If the mis-description was the fraudulent act of the draftsman, it nevertheless was as between the parties, a mistake. But there is no evidence tending to show fraud, and it cannot be inferred.
Dickerson is a member of a firm of land agents and abstractors, and suck firm was employed to make out an abstract for one Newcomb. In doing so it was discovered Day bad given the plaintiff a mortgage on Newcomb’s land, instead of that, described in tbe application to which the affidavit o'f Dickerson was attached. The latter, therefore, was charged with notice of the land Day desired to mortgage, and he was asked, when on the stand as a witness, whether he supposed Day “intended to mortgage Newcomb’s land.” His reply was “I had good reason to suppose it was a job set up by Day and - Hopper, either on Newcomb or the loan company.” If Dickerson had inquired of Day he would have ascertained it was not a “job” but a mistake, and such inquiry he was bound to make. Nor are we willing to admit, if he had good reason to suppose Day had committed a fraud on the plaintiff or loan company, that he was justified in aiding anyone to reap a benefit from such fraud.
Dickerson having full knowledge of the mortgage and of the mistake or fraud on the part of Day, and suggested to Hudspeth to purchase the same land intended to be mortgaged of Archer. Hudspeth did so, paying $500 for it, which Dickerson testified was worth at the time $1,800. Dickerson obtained the $500 so paid from Yetzer for Hudspeth, and the latter executed a mortgage therefor and included therein certain other indebtedness to Yetzer. The latter had no knowledge of the land, its value, or title. He relied on Dickerson to see that the title was good and the execution of the mortgage. In this respect, Dickerson was the agent of Yetzer, and the latter is bound by the knowledge of the former. This case is almost identical with that of Jones v. Sawford, 21 Iowa, 217. As the judgment below must be affirmed it is unnecessary to determined the motions filed by the appellee.
Aeei-rhed.