Winch v. Bolton

94 Iowa 573 | Iowa | 1895

Deemer, J.

1 2 Some time in the year 1890, S. F. Winch, plaintiff’s assignor, sold to the defendants a tract of land in Harrison county, Iowa, for the agreed consideration of two thousand seven hundred and sixty-nine dollars. The purchase price was represented by eight notes, due in three, four, five, six, seven, eight, nine, and ten years, each bearing eight per cent, interest. These notes were secured by mortgage upon the land. It was provided in the notes and in the mortgage that a failure to pay the interest on the notes within ten days after it became due should cause the whole of the notes to mature and become collectible. The deed from Winch to defendants was signed, not only in his individual name, but also by himself as •attorney in fact for his wife, Sarah F. Winch, under a power of attorney purporting to have been signed by her. It is claimed by defendants that this power of attorney did not bear the genuine signature of Sarah F. Winch, but, on the contrary, that it was false' and forged. Testimony was taken upon this issue, but, as we view the case, it is entirely immaterial to determine who is right about this matter, for the testimony conclusively establishes that these persons were divorced from each other on April 30,1892, in the state of Nebraska. As the title to the land was in S. F. Winch, the divorced wife has now no claim therein, and it is not necessary to determine whether she signed the power of attorney or not. The only testimony as to judgments existing against the land shows that they were satisfied February 16,1893. This was a few days after the commencement of the suit, but. of this defendant cannot complain.

3 4 II. It is also' contended on behalf of appellants that nothing was due on the notes at the time this action was commenced, that the interest and principal due had been paid, and that the suit is premature. This presents a question of fact, which requires but little discussion. It appears that, when the notes in suit were executed, defendants, or one of 'them, were indebted to plaintiff’s assignor on other notes, and that subsequent to that time they borrowed money and became otherwise indebted to S. F. Winch. It also appears that Winch had a mortgage upon most, if not all, of their chattel property, to secure some of these notes, as well as the interest due on some or all of those in suit. It is shown that defendants have made some payments to S. F. Winch, — not as many as they claim, however; but it is also shown that these payments were properly credited upon indebtedness of defendants other than the notes in suit. .These credits were ma.de with full knowledge of defendants’ and they cannot complain. Nothing has been paid upon the notes- in suit. True it is that plaintiff or her assignor holds a chattel mortgage upon some property as security for a part of the interest due on the notes given for the land; but, as we understand it, the decree properly guards defendants’ rights by providing that any amount realized from the sale of the mortgaged property shall be credited on the judgment rendered in this suit. No one contends that this mortgaged property is sufficient in value to pay the principal and interest due on the notes in suit. The testimony does not show any agreement upon the part of plaintiff or her assignor to accept the chattel mortgage in lieu of the agreement in the notes, as claimed.

We have gone over the whole record with care, and reach the conclusion that the decree is right.— Affirmed.