Boice v. Coffeen

• Court: Iowa Supreme Court
• Writing for the Court: EVANS, J.
• Citation: Boice v. Coffeen, 158 Iowa 705, 138 N.W. 857 (Iowa 1912)
• Decision Date: 11 December 1912
• Parties: C. S. BOICE, Appellee, v. NORA COFFEEN, Executrix of Estate of H. L. Coffeen, Deceased; JOHN D. MULLANEY, Appellant; JAMES H. HENSEN, Appellee, et al

138 N.W. 857

158 Iowa 705

C. S. BOICE, Appellee, v. NORA COFFEEN, Executrix of Estate of H. L. Coffeen, Deceased;

JOHN D. MULLANEY, Appellant; JAMES H. HENSEN, Appellee, et al

Supreme Court of Iowa, Des Moines

December 11, 1912

Appeal from Winneshiek District Court.--HON. L. E. FELLOWS, Judge.

SUIT in equity to foreclose a mortgage on real estate. The original mortgagor was one Steele. Steele conveyed the real estate to Coffeen, who assumed the mortgage. Coffeen conveyed to Mullaney, who also assumed the mortgage. Mullaney conveyed with full covenants of warranty to one Loomis. Loomis conveyed by special warranty deed "by, through, or under" him to Jensen, who is the present owner of the property. Loomis and Steele are not parties. Both Coffeen and Jensen filed separate cross-bills. The cross-bill of the defendant Coffeen was directed against his codefendant Mullaney; that of the defendant Jensen was directed against the plaintiff and against his codefendant Mullaney. There was a decree for the plaintiff, foreclosing the mortgage and charging Mullaney to be personally liable. The decree also awarded relief to Coffeen and Jensen to the extent of holding the liability of Mullaney to be primary as to them. Mullaney appealed. Thereupon Jensen also appealed.--Modified and Affirmed.

Affirmed.

Frank Sayre, for appellant Mullaney.

E. W Cutting and E. A. Johnson, for appellant Jensen.

C. A Boice and E. R. Acres, for appellee.

N Willett, for defendant Coffeen.

OPINION

EVANS, J.

The amount of the mortgage in question was originally $ 1,000. Its principal was reduced by payment to $ 880. The mortgagee was the Winneshiek County Bank. The plaintiff acquired the note and mortgage by assignment and indorsement "without recourse." The validity of this assignment is assailed by defendant Jensen. We pass that question to a later stage of the discussion; and we will first consider the case as though the plaintiff were the original payee of the note and mortgage. In his cross-bill Coffeen asked that his liability be deemed secondary to that of Mullaney and to that of the mortgaged property. The defendant Jensen asked that the liability of the mortgaged property be deemed secondary to the personal liability both of Mullaney and Coffeen. He also asked relief, as already suggested, on the theory that the plaintiff was not a party in interest, and that the mortgage should be deemed paid.

It will be noticed that all of the defendants appear in the chain of title from Steele to Jensen. Coffeen, as grantee of Steele, assumed to pay the mortgage. Instead of paying it, he conveyed to Mullaney, and Mullaney assumed to pay the mortgage. Loomis, as grantee of Mullaney, did not assume the mortgage. Neither did Jensen as grantee of Loomis. In its essential elements the case would be very simple, were it not that the parties to the appeal have filed seven abstracts and amendments and five briefs.

I. As between Steele, the mortgagor, and Coffeen, his grantee, who assumed the mortgage, Coffeen became the principal debtor; and the liability of Steele to pay the debt became secondary. Malanaphy v. Manufacturing Co., 125 Iowa 719, and cases there cited. The liability of the mortgaged property remained the same in the hands of said grantee as it did in the hands of the first mortgagor. In an equitable sense Coffeen became the mortgagor of his newly acquired property. The existence of the mortgage operated to the protection of Steele on his secondary liability. Upon the conveyance of the property by Coffeen to Mullaney and the assumption of the mortgage by Mullaney, then, as between Coffeen and Mullaney, the latter became the principal debtor, and the liability of Coffeen became secondary.

The liability of the mortgaged property was not affected by either conveyance. By the conveyance to Mullaney and his assumption of the mortgage, Mullaney stepped into the shoes of Coffeen. The existence of the mortgage then operated to protect Coffeen upon his secondary liability in like manner as it operated to protect Steele upon his. If this foreclosure had been brought while the mortgaged property remained in Mullaney, there could be no question but that the payee of the note and mortgage could have taken personal judgment against Mullaney, and could have taken foreclosure and special execution against the property. It would be clear, also, that Coffeen, as between himself and Mullaney, would have been entitled to protection as against primary liability. This right was not lost by Mullaney's subsequent conveyance. Jensen holds his title under Mullaney. As against the mortgagee and Coffeen, his rights can rise no higher than Mullaney's. We find him entitled to equitable relief, but only as against Mullaney, his warrantor. Such equitable relief must be awarded to him, but without prejudice to the pre-existing equities of the mortgagee and Coffeen.

These general propositions will suffice as a basis for further discussion of the details of the case as presented by the appeals. The decree entered below awarded the plaintiff a foreclosure of the mortgage and a special execution against the property and a general execution against Mullaney. The decree also awarded judgment in favor of Jensen, with general execution against Mullaney, for the full amount of the incumbrance upon his property. It is made to appear that after the decree was entered the plaintiff sold the mortgaged property under special execution and bid $ 800 therefor and took a general execution against Mullaney for the balance of the debt, amounting to over $ 300. The defendant Jensen also obtained a general execution under the decree for the full amount of the incumbrance, viz., $ 1,091, and levied the same upon the property of Mullaney. Thereupon Mullaney appealed to this court and filed supersedeas bond. Thereupon Jensen appealed also. The plaintiff has moved to dismiss Jensen's appeal, on the ground that he waived his right to appeal by issuing execution.

We may as well say here that we do not think that plaintiff is in a position to raise this question. The defendant Jensen may have been satisfied to abide the decree as entered and to proceed accordingly. But when Mullaney appealed he was threatened with the loss of the only relief which the decree gave him. That he should have determined then to appeal also is not inconsistent with his previous attitude. In the exercise of fair caution he may well have deemed it necessary, after the taking of Mullaney's appeal, that he should appeal, in order that he might obtain a trial de novo here upon the merits of his whole case as made by his cross-petition. He could properly assume the possibility that this court might find that he was not entitled to the relief actually granted in the lower court, and yet was entitled to other relief which had been refused. The question here raised, however, is rendered of no consequence because of the conclusions we reach upon the merits of the case.

We will now proceed to consider more in detail the questions presented by the appeals.

II. We turn first to the appeal of Mullaney. This presents two branches: (1) An appeal from the decree as entered in favor of the plaintiff; (2) an appeal from the decree as entered in favor of Jensen.

We will give our first attention to the first branch. The plaintiff offered in evidence a certified copy of the record of the deed from Coffeen to Mullaney. This was objected to by Mullaney, on the ground that the evidence was secondary, and that the plaintiff had not sufficiently accounted for the original, under the provisions of section 4630 of the Code. The argument is that the plaintiff should have first testified that he did not have possession or control of the original, as a foundation for the offer of the record in lieu of the original. The trial being had on the equity side, the trial court made no rulings on the admission of evidence. Later Coffeen was examined as a witness in the case. He testified to the circumstances of the execution of the deed in question to Mullaney. The transaction was had with Mullaney personally. Coffeen also testified that it was the only transaction of the kind that he had had with him, and that he executed only one deed. Coffeen thereupon offered in evidence the same certified copy of the record as had been offered by the plaintiff. This testimony was offered in support of Coffeen's cross-bill.

It is quite manifest that if the plaintiff failed in a showing of foundation there was sufficient foundation in the testimony of Coffeen for the introduction of the same certified copy. The original instrument was thereby traced into the hands of Mullaney himself. The original instrument was not one to which the plaintiff, or those under whom he claimed, were parties. On the face of the instrument Mullaney, and no one else, was entitled to possession of it. It is at least doubtful whether such a showing was not a sufficient foundation for the introduction of the record without the testimony of Coffeen. See Bixby v. Carskaddon, 55 Iowa 533 at 537, 8 N.W. 354. Be that as it may, the certified record was properly introduced under the testimony of Coffeen.

It is argued for appellant Mullaney at this point that the defects of plaintiff's case could not be supplied by the testimony of Coffeen on his cross-bill. But if the evidence was properly in the record on behalf of Coffeen it could not be eliminated, even though the plaintiff had failed to introduce it at all. Coffeen was entitled to its consideration, and was entitled to equitable relief because thereof. The right of plaintiff at this point was merely incidental to that of Coffeen, and was consonant with it. The evidence could not be in for Coffeen and out for the plaintiff. The relief sought...