85 Iowa 698 | Iowa | 1892
On the first day of April, 1886, Raymond Patterson and Harry B. Layton made to John D. Bush their promissory notes to the amount of seventeen thousand, five hundred dollars. One of those, for three thousand dollars, with interest at eight per cent, per annum, payable five years after its date, was indorsed by the payee, and given to his. daughter, Mrs. Anna M. Utt. She sold it to the plaintiff in May, 1886, for the sum of three thousand dollars. Bush died testate in August of that year, and administration of his estate was granted to the defendant in the month of December following. In November, 1886, the plaintiff signed and verified a petition, to which a copy of the note in question was attached, in which he alleged that the decedent was indebted to him by reason of the indorsement of the note, and that the debt was wholly unpaid. The petition was addressed to the circuit court of Dubuque county, and was left with the law firm of Utt Bros. In October, 1888, it was filed in the
The circumstances upon which the plaintiff relies to take the ease out of the statute are substantially as follows: He had been acquainted with W. H., Nathan E., and J. B. Utt — at one time members of the firm of Utt Bros. — since they were boys. J. B. Utt had married Anna M., the daughter of Bush. In the first part of the year 1886, J. B. Utt was sick, and appears to have been in urgent need of money. His wife applied to her father for assistance, and, after several requests, the note in suit was given to her by her father, to be used for the purpose of raising money. She at once took it to the office of Utt Bros., and asked Nathan to write to the plaintiff, and obtain money on it. After some correspondence the plaintiff purchased the note as stated, W. H.. and N. E. Utt, Utt Bros., and Anna M. Utt guarantying its payment. When he heard of the death of Bush he went to Dubuque, and prepared the original petition filed in this case, leaving it with Utt Bros., with the understanding that it should be duly presented and allowed, but, at their suggestion, taking the note back to California, where he then resided. Utt Bros, had been attorneys for Bush from
It is contended that the relation of Utt Bros, to the estate was such that the plaintiff had no right to
II. It is said the petition was fatally defective Because addressed to the circuit court. That court was
III. The indorsement of the note in suit made by Bush was in blank. It is said that, as the note was a
IV. It is said that the estate had been fully settled when the claim was filed, and- therefore that it should 4. -: filing of claims: equitable relief. not be allowed. It is true the defendant had made what she designated to be her final report as executrix, and that she claimed the estate had been fully settled, but the report had not been acted upon by the court, and it does not appear that notice of it had been given or waived. As the claim of the plaintiff was a valid one, the estate cannot be deemed settled. Van Aken v. Clark, 82 Iowa, 256. A part of the real estate which belonged to the estate has been sold, and a part has been mortgaged, to obtain funds for use in settling the estate. The allowance of the claim of the plaintiff must necessarily be subject to the rights of persons who have purchased real estate or taken real estate mortgages in good faith, without knowledge of the rights of the plaintiff.
We find that the allowance of the claim of the plaintiff was fully warranted by the law and the facts. The judgment of the district court is aefiemed.