Barnett v. Nelson

Decision Date14 June 1880
Citation54 Iowa 41,6 N.W. 49
PartiesBARNETT v. NELSON AND WIFE.
CourtIowa Supreme Court
OPINION TEXT STARTS HERE

Appeal from Adams district court.

This case was before us on a former appeal. See 46 Iowa, 495, to which reference is made for a statement, in part, of the facts. Upon that appeal it was held that the plaintiff should be regarded simply as a mortgagee in possession and liable to account, and the cause was remanded for the taking of an account and the foreclosure of the mortgage originally sued upon, if anything should appear to be due thereon. Upon the return of the cause to the court below the plaintiff filed an amendment to his petition, setting up the note to J. R. Lewis, and praying a foreclosure of the mortgage executed to secure the same; also asking that the money advanced on the Cass county bank judgment be taken into consideration in the accounting; also claiming the sum of $1,734.24 for insurance, taxes, and necessary repairs upon the property whilst the plaintiff was in possession. The cause was referred to A. Beeson, Esq., who submitted the following report:

“1. That plaintiff paid on the Cass County Bank foreclosure sale the sum of $1,624.27, on the twenty-second day of May, 1873.

2. That plaintiff took possession of the mill on the first day of May, 1874.

3. That there was due plaintiff on the first day of May, 1874, on the two notes set out in the petition and amendment thereto, the sum of $3,297.33, and on the sixteenth day of April, 1878, the day of trial, the amount of said notes was $5,210.08.

4. That each of said notes and mortgages provides for a reasonable attorney fee if foreclosed by suit, and by the agreement of the parties $132.44 is a reasonable fee on the first amount, and $180.25 on the second.

5. That the rental value of the mill during the time plaintiff held possession, from May 1, 1874, to April 16, 1878, was $1,200 per year.

6. That plaintiff paid, during the time he had possession of the mill, taxes thereon to the amount of $232.24, and insurance to the amount of $118.80.

7. That plaintiff received from the mill and coal banks and house rent, while in possession thereof, including what James Shafer paid him, $2,942.97; and expended in repairs thereon, exclusive of taxes and insurance, the sum of $1,242.62.

8. That plaintiff has received from the sale of lots on the mortgaged property the sum of $60.

9. That the defendant has received credit on his notes for the hogs, cattle and flour he let plaintiff have.

10. That plaintiff never received anything for the blacksmith tools but a note, which he tendered to defendant.

11. That plaintiff procured the insurance on the mill for his own benefit and without the assent of defendant.

12. That defendant's homestead consists of lots five and six, in block nine, in the town of Carbon, and is included in the two mortgages set out in plaintiff's petition.

13. That plaintiff, after taking possession of the mill and other land, under the Cass County Bank foreclosure sale, claimed to be the absolute owner thereof, and treated it as his own, and demanded of defendant the possession of his homestead, but never attempted to eject him therefrom, or in any way disturb his possession.

14. That defendant's claim for water rent for the use of the saw-mill is not sustained by the evidence.

15. That on the twenty-fourth day of September, 1877, defendant gave plaintiff notice to surrender the possession of the property to him, but did not pay, or offer to pay off plaintiff's liens thereon.

16. That the defendant Rebecca Nelson, wife of Thomas Nelson, did not join in the Cass County Bank mortgage, and she was not a party to the foreclosure suit.

17. The mill has been suffered to run down since April, 1874, for the want of proper care and necessary repairs, and is now in bad condition, and I find the damage to mill, for want of ordinary care and repairs, to be $1,000; and I further find, in this connection, that Barnett treated the mill as his own property, and was not guilty of any fraud or gross carelessness in the management thereof.

18. That at the time of the execution of the Cass County Bank mortgage defendant Thomas Nelson was the head of a family, and had a wife living with him, and occupied as his homestead the whole of the 40-acre tract in controversy, except the north-west 10 acres upon which the mill was situated.

19. That said land was laid off into the town of Carbon, in March, 1873, and the plat thereof approved and ordered to be recorded by the judge of the district court on the ninth day of April, 1873.

20. That the $2,000 mortgage, set out in plaintiff's petition, covers only half of the 40 acres, to-wit, the north half, and the $800 mortgage, given to Lewis, covers the entire 40 acres.

CONCLUSIONS OF LAW.

1. That the Cass County Bank mortgage is void, except as to the mill 10 acres, for the reason that the balance of the land was a homestead, and the mortgage was not signed by defendant's wife, and that the sale thereof to plaintiff, under decree of foreclosure, conveyed no title whatever to the 30 acres.

2. That plaintiff, being a mortgagee in possession, should account only for the net proceeds of the property.

3. That plaintiff has a lien against the mill, and the 10 acres of ground on which it is situated, for the amount of the Cass County Bank mortgage, as shown by the first finding of facts, and interest thereon at 10 per cent. per annum from May 22, 1873.

4. That plaintiff is entitled to a lien and decree of foreclosure on the north half of the 40 acres for the amount of the $2,000 mortgage, less the credits thereon, and the whole amount of said land for the amount of the $800 Lewis mortgage.

5. That plaintiff should not be allowed anything for insurance paid by him.

6. That interest on all of said amounts should be computed to day of trial.

7. That under the circumstances of this case it would be inequitable to permit plaintiff to recover anything for attorney's fees.

8. That defendant is entitled to credit on said sums owing to plaintiff, the sum of $1,641.55 being the net profits received by plaintiff from said property, which is all he should be held to account for. I therefore recommend judgment against Thomas Nelson for the amount of the two notes, less said credits and profits, and a decree of foreclosure against both of the defendants on the north half of the land (that is of the 40 acres) on the $2,000 mortgage given to the plaintiff, and on the whole of said land on the $800 Lewis mortgage, except, in each case, the land sold to Shoemaker, and that lots 5 and 6, in block 9, in the town of Carbon, on said land, being defendant's homestead, be not sold unless the balance fails to sell for enough to satisfy plaintiff's claim, and costs, and that defendant have the same time in which to redeem from the Cass County Bank foreclosure as from the sale under the other two mortgages, and that plaintiff have judgment for one-half the costs of this action, and that defendants have judgment against the plaintiff for one-half the costs.”

The plaintiff filed exceptions to certain portions of this report, which the court sustained to the following extent: “That the report of the referee as to the seventh finding of fact be corrected as to the amount of receipts, deducting from the amount there stated by the referee the sum of $200, the same having been doubly charged, as shown by said report, and also as to the amount of expenditures, by adding thereto the sum of $338.94, being the taxes paid by the plaintiff.” The defendant also filed exceptions to certain of the findings of fact and conclusions of law of the referee, all of which the court overruled. The court, with the exceptions above named, confirmed the report of the referee, and adjudged that the plaintiff recover on the two notes sued upon, and the Cass County Bank foreclosure, the sum of $7,046.74, with interest at 10 per cent. per annum, and that the mortgages described in plaintiff's petition and the amendment thereto be foreclosed. The defendant excepted, and appeals.

Frank M. Davis and R. A. Moore, for appellant.

J. H. Maley and McPherson & Scott, for appellee.

DAY, J.

1. The cause was tried, as shown by the referee's report, on the sixteenth day of April, 1878, before chapter 145 of the Laws of 1878 took effect, and is governed by the provisions of section 2742 of the Code. It does not appear that any motion was made for trial upon written...

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2 cases
  • Whitney v. Adams
    • United States
    • Vermont Supreme Court
    • July 16, 1894
    ...default. He is not entitled to receive anything for his own personal services. Pom. Eq. Jur. §§ 1215-1217, and notes; Barnett v. Nelson, 54 Iowa, 41, 6 N. W. 49; Sanders v. Wilson, 34 Vt. 318; French v. Baron, 2 Atk. 120; Moore v. Cable, 1 Johns. Ch. 385, 1 N. Y. Ch. (Lawy. Ed.) 381, and no......
  • Barnett v. Nelson
    • United States
    • Iowa Supreme Court
    • June 14, 1880

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