15 Iowa 187 (Iowa. 1863), Leas, Harsh & Sinclair White

• Judge: Hon. CALEB BALDWIN, Chief Justice, Hon. GEORGE G. WRIGHT, Judge, Hon. RALPH P. LOWE, Judge, Hon. GEORGE G. WRIGHT, Chief Justice, Hon. RALPH P. LOWE, Judge,
• Parties: LEAS, HARSH & SINCLAIR WHITE et al
• Docket Number: .
• Citation: 15 Iowa 187
• Court: Iowa Supreme Court
• Date: 13 October 1863

Page 187

15 Iowa 187 (Iowa. 1863)

LEAS, HARSH & SINCLAIR WHITE et al

Supreme Court of Iowa, Des Moines

October 13, 1863

Page 188

Appeal from Polk District Court.

THE petition, in equity, avers that on the 29th of December, 1859, complainants sold to respondent, White, a certain lot of land, describing it; that as a part of the consideration said respondent sold and assigned to them a note of one Wheeler, and a pretended mortgage accompanying the same, which note was dated October 23d, 1856, and due in sixteen months from date, for the sum of $ 2,000; that said respondent, for the purpose of securing the payment of said note, executed a mortgage upon the premises so sold to him by complainants, reciting that the mortgagor had assigned to them the said Wheeler note, and that if they could not, with due diligence, collect the same within twelve months from the date of said sale, then said White assumed the payment of the same. Then follows this language: "And your petitioners aver that they could not, with due diligence, collect said note in one year from said date, for that the said pretended mortgage was fraudulent and void, in fact, as to all parties, and could not be foreclosed, and further, was upon property of no value, if clear and unincumbered, sufficient to pay costs of suit; was made upon property to which the mortgagor had no valid title; was not acknowledged, when recorded, and was never constructive notice to any person, although the acknowledgment had been fraudulently filled in by some party to plaintiffs unknown, before the date of said purchase; that said mortgage had been duly released before the date of said assignment, under the laws of Minnesota, where the land was situated, and the land resold and mortgaged, so that the same could not have been foreclosed, and nothing whatever could have been collected thereon. And your petitioners so charge, that they could not, with reasonable diligence, collect said note in twelve months from that date."

Respondents demurred; the demurrer was overruled, and they appeal.

Reversed.

C. C. Cole for the appellant.

I. The mortgage shows that the plaintiff was to perform a condition precedent, upon, which the defendant's liability depends. Chit. Contr., 808; Taylor & Otis v. Bullen, 6 Cow. 624.

II. The plaintiffs must aver and prove such performance. 1 Chit. Pl., 320; Story Cont., § 32; 2 Story Eq. Jur., § 1082; Add. Cont. (2 Am., § 5), 863; Campbell v. Jones, 6 Tenn. 471; Johnson v. Reed et al., 9 Mass. 73; Justice v. The Board of Justices of Vermillion County, 2 Blackf. 149; Eddy & Ames v. Stantons, 21 Wend. 255; Moakley v. Riggs, 19 John. 69; Kies v. Tifft, 1 Cow. 98; Thomas v. Wood, 4 Cow. 173; Chun v. Howard, 3 Blackf. 163; Heaston v. Colgrove, 3 Ind. 265; Springer v. Stewart, 2 G. Greene, 390.

III. The excuse alleged for non-performance of the condition precedent is not sufficient. Sec cases cited above. Smallwood v. Woods, 4 Ky. 542, 1 Bibb 542; Markley v. Withers, 4 Monr. 14; Trimble et al. v. Webb et al., 1 Id. 103; Simpson v. Daniel, 1 B. Monroe, 250; Loveland v. Shepard, 2 Hill 139; Miln., 5 Exch. 829; 2 Story Eq. Jur., § 1311; Bond et el. v. Evans et al., 20 Id. 29; Choalton v. Russell, 4 Me. 553; Dewey v. Kyle, 16 Id. 450; Bunn et el. v. Procther et al., 21 Ill. 217; Stone et el. v. Robinson, 24 Id. 532.

S. V. White for the appellee.

Hon. CALEB BALDWIN, Chief Justice, Hon. GEORGE G. WRIGHT, Judge, Hon. RALPH P. LOWE, Judge, from...