82 Iowa 74 | Iowa | 1891
The following facts are established by the testimony: The notes and mortgages in suit were executed by Dayton and wife, February 27, 1884, and became due one year thereafter. The mortgage was junior to one executed by Dayton and wife to appellant and to one prior thereto securing two thousand dollars. Dayton executed to Riley, as further security for the three hundred dollars named in the notes, his mortgage on certain chattel property. On January 18, 1886, Dayton sold the mortgaged property to one John Dierks, and conveyed the land by quitclaim deed for the consideration of one hundred dollars, Dierks assuming and agreeing to pay the mortgage debts. October 21, 1886, Byam took a decree foreclosing his mortgage, in an action wherein Dieiks was a party, and purchased the land at execution sale for twelve hundred and twenty-two dollars and ninety-two cents, and before the commencement of this action received a sheriff’s deed therefor. February 9, 1887, Dierks conveyed the land
While it does not appear exactly when or how Dierks took up the notes from Riley, there is no doubt but that he did so, and we presume that it was by payment in money or other acceptable satisfaction to Riley. It is evident from the testimony of Warren Gammon, and from the circumstances,' that Dierks intended and attempted, as he expressed it, “to keep this mortgage alive,” and make the land still chargeable therewith, and that Riley was retained by him as his attorney, to assist in doing so, and that the mortgage was left open and unsatisfied on the record for that purpose. It does not appear whether Byam knew of Dierks’ agreement to pay the notes or not, at the time he purchased from Dierks. The value of the land is shown to have been about thirty-five hundred dollars, and the cost thereof to Byam was thirty-four hundred and ninety-nine dollars and ninety-two cents, being the amount of his own and of the prior mortgage and the two hundred and ninety-seven dollars paid to Dierks.
I. It will be seen from the foregoing statement of facts that this controlling question is whether the payment
It is contended on behalf of appellee Theisen, that, as he took the notes and mortgage for value, and without notice of Dierks’ agreement to pay the same, he took them free from any defense arising out of that agreement, though taken after maturity. Crosby v. Tanner, 40 Iowa, 136, and Blake v. Koons, 71 Iowa, 356, are relied upon. The first case was a contention as to the priority between two mortgages, the first being from Gr. K. Tanner to Frances B. Tanner, and the second from C. K. Tanner to defendant Melhop. Melhop accepted his mortgage upon an agreement by the first mortgagee to cancel that mortgage, which he failed to do, but transferred the note to one Baker before maturity, who afterwards indorsed it to the plaintiff ; neither Baker nor the plaintiff having knowledge of the agreement to cancel the first mortgage. It was held that the rule as to the transfer of negotiable instruments after maturity, and of choses in action, was not applicable to the case, “for the reason that the equities, which survive the assignment, are those which are between the parties to the instrument, and not those between the assignor and one not a party.” The reason given for the rule is that “the assignee can always go to the debtor, and ascertain what claim he may have against the bond, or other chose in action, which he is about purchasing from the obligee; but he may not be able, with the utmost diligence, to ascertain latent equities of some third person against the obligee. He has no object to which he can direct his inquiries, Two marked distinctions are obvious between that case and this : In that the agreement was not with the debtor, as in this, and, for aught that appears, the debtor did not know of the agreement. In that case there was no extinguishment of the debt and satisfaction
Blake v. Koons was an action on notes and mortgage executed by Koons, and held by plaintiff under an assignment to his intestate after maturity. Defendant Masden had signed a note as security for Koons, given' for part of the purchase price.of the mortgaged premises prior to the mortgage. In an action on that note, it was determined that the vendor was not entitled to a lien, and judgment was entered against Koons and Masden, which-was satisfied by a sale of the premises on execution to Masden, upon which he received a sheriff’s deed. In the case cited, Masden claimed that, having paid the debts, he was entitled to be subrogated to the rights of the vendor, and to have a vendor’s lien; but the court held that it was adjudged in a former case that the vendor was not entitled to a lien. The court says : “As the intestate purchased the notes after maturity, she took them subject to existing equities in favor of the maker. But appellant was not a party to the contract. He is a subsequent purchaser of the mortgaged premises, but purchased with notice of the mortgage, and the question is whether he is in a position to plead, as against an assignee of the notes, the infirmity of the contract.”
It is contended on the authority of this case, not only • that appellee held the notes in suit free from defense based upon Dierks’ agreement to pay them, but that the appellant Byam is not entitled to defend by virtue of that agreement; that, having purchased with knowledge of the mortgage, he must, be held to have taken subject thereto; and that the presumption is that the amount of the mortgage was deducted from the purchase money. Such presumption is completely rebutted by the evidence as to the value of the land and the price paid. Powell v. Smith, 30 Mich. 451, is also cited. It is sufficient to say of that case, and of the two last mentioned, that it did not appear in either that there had been payment and full satisfaction of the debt and
II. We have rested our finding of facts somewhat upon the testimony of Warren Gammon, examined on
subject to the objection. It appears that Mr. Gammon was employed by Dierks to draw the conveyance from Dayton to Dierks, and that Dierks sought to retain him for the purpose of “keeping the mortgage alive,” but that Gammon declined the employment for that purpose. What was said by Dierks was not in connection with the conveyance, but his proposed further employment, and was not communicated while the relation of attorney and client existed. We think the objections were not well taken.
Our opinion is that the judgment of the district court must be reversed, and a decree entered dismissing the plaintiff ’ s petition. Reversed .