149 Iowa 426 | Iowa | 1910
The plaintiff is the administrator of the estate of James Thomas, deceased. The defendant Mary E. Brookhart is a daughter of said James Thomas, the widow of Charles A. Brookhart, deceased, and the mother of her eodefendants. James Thomas was, in his lifetime, the owner of certain real property that he conveyed to Charles A. and Mary E. Brookhart, his daughter and her husband. He took from said grantees notes covering the purchase price of the land so conveyed, which were secured by mortgage on the land. This action was brought to foreclose this mortgage. The petition first filed alleged that the notes and the mortgage were in the possession of the defendants and that the mortgage had been canceled of record; the petition stating that the mortgage was canceled by James Thomas, the mortgagee named therein, “for reasons which at the time appeared to him to be good and sufficient.” The plaintiff was then required by the court
The sole question before us is whether the facts pleaded are sufficient to deny the plaintiff the relief prayed. We think there can be no serious doubt about the matter. In fact, the plaintiff himself concedes that the transaction as pleaded by him was illegal, and that it would be sufficient ordinarily to prevent a recovery; but he seeks to avoid the effect of such admission by taking the ground that the cancellation of the mortgage did not in fact or in law affect the rights between the mortgagor and mortgagee, and this for the reason that the recording of the mortgage was unnecessary as between the parties thereto. The trouble with the appellant’s contention is this: While it was not necessary as between the parties to the mortgage that it be recorded, yet when it was recorded, and a release thereof was made, either on the record of the mortgage or by a properly executed and independent instrument, such release became prima facie evidence of the satisfaction of the mortgage and the debt secured thereby, and it then became necessary for the plaintiff to meet the prima facie case thus made. This he could not do without proving the facts connected with such release. In Kuen, Executor, v. Upmier,
The judgment will therefore be affirmed.