Anglo-American Land, Mortg. & Ag. Co. v. Bush
| Citation | 84 Iowa 272,50 N.W. 1063 |
| Parties | ANGLO-AMERICAN LAND, MORTG. & AG. CO., LIMITED, v. BUSH ET AL. CRAWFORD v. LOMBARD. |
| Decision Date | 23 January 1892 |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeals from district court, Union county; J. W. HARVEY, Judge.
Action in equity to recover certain amounts alleged to be due the plaintiffs, and for the foreclosure of a mortgage given to secure their payment. The material facts involved in the appeals are stated in the opinion.D. H. Ettien, for appellants.
McDill & Sullivan, for appellees S. E. Rex and C. S. Rex.
Enoch & Winter and T. M. Stewart, for appellee J. H. Crawford.
On the 28th day of April, 1884, the defendants Edwin J. Bush and Kate B. Bush, his wife, executed and delivered to James L. Lombard their six promissory notes. Of these, one was for the sum of $500, due November 1, 1885; one was for $500, due February 1, 1886; one was for $1,000, due July 1, 1886; one was for $1,000, due November 1, 1886; one was for $3,000, due May 1, 1888; and one was for $6,000, due May 1, 1889. Coupons providing for interest at the rate of 8 per cent. per annum were attached to these notes. A. P. Stephens was surety on the first four of them. For the purpose of securing the payment of the notes, Edwin J. and Kate B. Bush executed and delivered to James L. Lombard a mortgage upon property situated in Union county, Iowa, described as follows: Lots numbered 84 and 85 in West Creston, section A, an addition to the original town of Creston, according to the recorded plat thereof; and part of lots 297 and 298 in the original town of Creston, according to the recorded plat thereof, described as follows: Commencing at the south-east corner of lot 297, and running from thence north 76 feet; thence west 40 feet; thence south 76 feet; thence east 40 feet, to the place of beginning,--together with all the improvements and appurtenances thereunto belonging. This mortgage was duly recorded on the day after it was given, on page 133 of Book 39 of Union County Records. The lots numbered 84 and 85, with the improvements thereon, constituted the homestead of the mortgagors. Lots numbered 297 and 298 were occupied by a two-story building, known as the “Eagle Block,” which had a front of 120 feet, and extended over that part of these lots described in the mortgage. That part of the block covered by the mortgage included two store-rooms, of the value of about $15,000. It appears that, at about the time this mortgage was given, two others were given by the same mortgagors,--one to the Edinburg Lombard Investment Company on a part of lots numbered 297 and 298, 20 feet in width, west of and adjoining that portion mortgaged to James L. Lombard; and the other to B. Lombard, Jr., on a part of the same lots, 20 feet in width, west of and adjoining that portion mortgaged to the Edinburg Lombard Investment Company. Each of the two mortgages last described appear to have been given to secure the payment of an indebtedness of $3,000. The three mortgages described together included the east two-thirds of Eagle block. On the 25th day of February, 1887, E. J. Bush, James L. Lombard, and W. F. Patt entered into an agreement in writing, by which Bush assigned and transferred to Patt, as trustee, that portion of lots 297 and 298 which was included in the three mortgages. The agreement recited that Lombard controlled mortgages upon the premises transferred to the amount of $18,000, of which $3,000 was past due, and that, in consideration of the making of the contract agreed, he was to forbear and not commence legal proceedings to foreclose the mortgages before the 1st day of May, 1889. The agreement provided that the trustee should hold and control the buildings included in the premises transferred, lease them, and collect the rents, until the whole amount secured by the mortgages thereon should be paid. The money collected by the trustee was to be applied as follows: (1) To the payment of all taxes and assessments on the property as they should become due and payable; (2) to keeping the buildings insured for the sum of $15,000; (3) to the payment of interest on the $18,000 secured by the mortgages; (4) to the payment of the principal of the sums secured by the mortgages in the order of their maturity. The agreement was acknowledged, and duly recorded on the 30th day of March, 1887. Patt took possession of the property, and proceeded to execute the powers conferred upon him by the agreement. In May, 1889, Patt resigned as trustee, and was succeeded by L. C. Teed. In the latter part of July, 1889, James L. Lombard sold and transferred to J. H. Crawford the first three notes, amounting to $2,000, besides interest secured by the Bush mortgage of April 28, 1884, by an indorsement on each note, in words as follows
By a warranty deed dated the 29th day of October, 1888, Bush and his wife conveyed lots 84 and 85 to Emma M. Hibbard. This deed was duly recorded, probably on the 6th day of February, 1889, although the abstract states that it was done in the year 1888. On the 28th day of December, 1888, James L. Lombard executed a release, in the form of a quitclaim deed, from the mortgage to him of lots 84 and 85. The release was in favor of Edwin J. Bush, and was given for the stated consideration of $2,500, and was duly recorded on the 6th day of February, 1889. On the 6th day of March, 1888, B. Lombard, Jr., recovered judgment in the superior court of Creston against Bush and his wife and C. S. Rex for the sum of $1,305.28, and costs. Rex was in fact surety for the indebtedness on which the judgment was rendered. In April, 1888, the judgment was assigned to S. E. Rex, the wife of C. S. Rex; a general execution was issued on the judgment, and levied on those portions of lots 297 and 298 covered by the three mortgages we have described. The portions so levied upon were sold under the execution on the 4th day of August, 1888, to S. E. Rex. Redemption not having been made from the sale, the sheriff executed to the purchaser deeds for the premises sold on the 5th day of August, 1889. On the 26th day of September, 1889, James L. Lombard, S. E. Rex, and the trustee, Teed, entered into an agreement by virtue of which the trustee was to collect the rents of the property covered by the sheriff's deeds from the 6th day of August, 1889, until the controversy which had arisen between the various parties in interest, in regard to the right of possession of the property, should be finally determined by the courts, the rents so collected to be deposited in the Creston National Bank. The Anglo-American Land, Mortgage & Agency Company, having become the owner of the note for $3,000, and the one for $6,000 made to James L. Lombard, commenced its action to recover the amount due on the notes, and to foreclose the mortgage given to secure them. Edwin J. and Kate B. Bush, J. H. Crawford, C. S. and S. E. Rex, and others, whose names need not be given, were made parties defendant. Crawford and Mrs. Rex appeared and filed answers. Mrs Rex set up her title acquired by sheriffs' deeds; claimed the right of possession of the property therein described from the 6th day of August, 1889, until the foreclosure of the mortgage of plaintiff; the sale of the premises thereunder, and the expiration of the right to redeem from such sale; and asked for an accounting, and that all rents collected for the time prior to the date of her sheriffs' deeds be applied in payment of the debt secured by the mortgage to James L. Lombard. The plaintiff avers that the alleged purchase of the judgment by Mrs. Rex was in fact a payment by her husband which had the effect to satisfy the judgment; and that the pretended sale thereunder is void; and denies that Mrs. Rex has any right to rents, as claimed. J. H. Crawford pleads, by way of answer and cross-petition, that the release by James L. Lombard of lots 84 and 85 was executed without authority, fraudulently, and for the purpose of injuring him. He demands judgment against E. J. Bush and Kate B. Bush for the amount due on his notes; asks that the release be set aside; and that the mortgage be foreclosed, and the premises sold to satisfy his notes; and, if the release is found to be valid, he asks judgment against plaintiff and James L. Lombard for the value of the released property. He also asks for an accounting of the rents collected by the trustee.
Before the commencement of the action just described, in May, 1889, Crawford had commenced an action to recover the amount due on the notes owned by him, and for the foreclosure of the mortgage given to Lombard to secure them. He made Edwin J. and Kate B. Bush, A. P. Stephens, James L. Lombard, C. S. and S. E. Rex, B. Lombard, Jr., Emma M. Hibbard, and others, who need not be named, parties defendant, and demanded judgment against the makers of the notes, including Stephens, asked that the release executed by James L. Lombard be canceled, and the mortgage be foreclosed on the mortgaged property, including lots 84 and 85, and that the property be sold to pay the mortgage debt. He also asks an accounting for the rents, and, in case the release is found to be valid, that he have judgment against James L. Lombard and the Anglo-American Land, Mortgage & Agency Company for the value of the lots released.
James L. Lombard filed an answer to the petition of Crawford, in which he denied liability, and averred that the lots released were not of greater value than the $2,500 he received for releasing them; that ...
To continue reading
Request your trial