Beacham v. Gurney

• Decision Date: 05 October 1894
• Citation: 60 N.W. 187,91 Iowa 621
• Parties: CHARLES S. BEACHAM, JAMES L. LOMBARD et al., Trustee Substituted as Plaintiffs, v. HENRY W. GURNEY et al., Defendants and Appellees, JAMES L. LOMBARD, Defendant and Appellant
• Court: Iowa Supreme Court

60 N.W. 187

91 Iowa 621

CHARLES S. BEACHAM, JAMES L. LOMBARD et al., Trustee Substituted as Plaintiffs, v. HENRY W. GURNEY et al., Defendants and Appellees, JAMES L. LOMBARD, Defendant and Appellant

Supreme Court of Iowa, Des Moines

October 5, 1894

Appeal from Adams District Court.--HON. W. H. TEDFORD, Judge.

ACTION to foreclose certain mortgages. Decree for defendant appellees. Plaintiffs and defendant Lombard appeal.

Affirmed.

D. H Ettien for plaintiff, appellant.

Smith McPherson and T. J. Hysham for appellant Lombard.

Dale & Brown, for appellees Waterman, McElwain & Company, the State Insurance Company, W. A. Woodward, and J. M. Russell.

OPINION

KINNE, J.

I.

This is an action for judgment on two promissory notes executed by the defendant Gurney, and for the foreclosure of two mortgages securing them, on lands in Adams county, Iowa. Defendant James L. Lombard claims to be the owner of said land by virtue of two tax deeds executed to him by the treasurer of Adams county on September 30, 1889, and recorded October 4, 1889. Defendant appellees, Waterman and others, in their answer and cross-bill, claim to be the owners of certain judgments aggregating about five hundred dollars, and which were rendered on or between October 18, 1886, and March 3, 1888, being subsequent to the date of plaintiff's mortgages and the tax sale, and prior to the execution of the treasurer's deeds on said sales, and claim that, as against Lombard, their judgments are first liens, because Lombard's acquisition of the tax title was in fact a redemption from the tax sales, and claim, as against Beacham, that their judgments are first liens upon the land, because his mortgage lien had been lost by reason of his or his assignees having taken title to the land under an agreement to discharge and release the mortgage debt. Appellees ask to have their judgments decreed a first lien upon the land, that the mortgages be decreed paid, that the transaction between Lombard and the holders of the tax certificates be decreed a payment of taxes or redemption, and that appellees be permitted to redeem. Lombard denied the material parts of the cross bill, and plaintiff denied all of the allegations of defendant appellees' answer. By agreement, Lombard and others, trustees were substituted as plaintiffs. Defendants Gurney, James L. Lombard, and the Alliance Trust Company were defaulted for want of answer to the petition. The court entered a decree dismissing plaintiff's petition, and in favor of defendant appellees, and permitting them to redeem.

II. We first consider the case as between plaintiffs and defendant appellees. Appellants insist that the answer filed by appellees raised no issue, and that their cross bill or petition can not be considered. It is said that the law does not contemplate that one who is made a defendant may file a cross petition against the plaintiff. It is also claimed that there is a misjoinder of parties plaintiff in the cross petition. We do not deem it necessary to pass upon these questions. It may be that the cross petitioners should have set forth all that they plead in, their cross petitions in their answer. It is clear that, taking the answer and cross petition together, a good defense was pleaded to plaintiffs' petition. No objection was made in the trial court to the form or manner in which the judgment creditors set forth their defense. No question was raised that there was a misjoinder of parties. The case, as presented by all the pleadings, was treated by all of the parties as properly made, and plaintiffs can not now, for the first time, raise these questions. So far as this appeal is concerned, we must assume, in the absence of any objections in the court below, that all of the parties waived all informalities or irregularities in the pleadings.

III. We can not consider the evidence in detail. It is sufficient to say that it very satisfactorily shows that the mortgages sought to be foreclosed by plaintiffs were originally given to the Lombard Investment Company; that they were assigned to Charles S. Beacham; that the Lombard Company, when it sold the mortgages to Beacham, guaranteed their collection; that he relied upon said guaranty; that Beacham acquired the notes and mortgages prior to September 30, 1889; that the Lombard Company had authority to acquire title to the mortgaged property and cancel and satisfy the mortgages; that James L Lombard and B. Lombard, Jr., two of the trustee plaintiffs herein, were officers in the Lombard Company, one being vice president and general manager and the other the president of the company; that James L. Lombard is the same James L. Lombard who is also a defendant and appellant; that the Lombard Company paid said notes and mortgages in full to Beacham in August, 1890; that in December, 1889, one Jones, as the agent of James L. Lombard and the Lombard Investment Company, procured a deed from Gurney and wife to the mortgaged premises which he had executed to the Alliance Trust Company, and at the same time Jones made a sale of the land to one Firman; that it was agreed that said deed was in full of all claims against Gurney, including the mortgages in suit, which were to be satisfied, and the notes and mortgages delivered to Gurney; that this deed from Gurney and wife was given and accepted in payment of Gurney's notes and mortgages to the Lombard Company, and which were then held by Beacham; that Firman, in paying for this land, dealt only with the Lombard Company; that the transaction by Jones in behalf of Lombard and of the Lombard Company was intended as a satisfaction and cancellation of the mortgages; that, at the time said deed was taken by Jones, it was with full knowledge of the judgments of the cross petitioners. From these and other facts it is clear that, in taking the deed to the land, it was the intention to cancel...