61 Iowa 496 | Iowa | 1883
— I. On the 19th day of June, 1871, the defendant, Elizabeth MeCollough, executed to John Webster, her father, her promissory note for $1,147, payable in nine months, with interest from date at ten per cent. The plaintiff alleges that about the date of said note the decedent, John Webster, sold and conveyed to the said Elizabeth MeCollough one hundred and twenty acres of land, subject to certain liens
When John Webster died, the defendant gathered up his papers and handed them to the plaintiff before he was appointed administrator, telling him to take' care of them, as they would have to be given account of. These papers included the note in question. She did not then make any suggestion that the note was not to be paid. On the 19th of
II. In the contract of purchase, the defendant agreed to pay off a mortgage held on said property by John Throckmartain, and also to pay John Webster all money due him on the property.
When the jm’ties came to the execution of the conveyance, the defendant for the first time discovered that there was a mortgage to Lucas county on said land, executed by one David Mercer. This the defendant was induced to agree to pay, and to accept a conveyance subject to said mortgage. On the 29th day of January, 1871, Elizabeth McCollough paid off this mortgage by giving a new note and mortgage. She claims that her father agreed to reimburse her this amount, and we think the evidence sustains her position. The conveyance, subject to the mortgage discharged John Webster from liability upon his covenants of warranty, but not from his independent agreement to reimburse this sum. In addition to the credits allowed by the court, the defendent is entitled to a farther credit on account of this mortgage, in the sum of $364.
Modified and affirmed.