Boyd v. Christiansen

• Decision Date: 17 September 1940
• Docket Number: 45235.
• Citation: 293 N.W. 826,229 Iowa 1
• Parties: BOYD v. CHRISTIANSEN et al.
• Court: Iowa Supreme Court

293 N.W. 826

229 Iowa 1

BOYD v. CHRISTIANSEN et al.

No. 45235.

Supreme Court of Iowa.

September 17, 1940

Appeal from District Court, Tama County; B. O. Tankersley, Judge.

Action in equity to foreclose mortgage on real estate. From decree granting judgment against defendants and ordering foreclosure, defendants appeal.

Affirmed.

That same attorneys who instituted foreclosure proceedings against mortgagors represented mortgagors in a proceeding to obtain right of way to mortgaged lands did not affect the rights of clients in absence of charge of conspiracy or fraud.

C. H Van Law, of Marshalltown, for appellants.

Clarence Nichols, of Vinton, for appellee.

OLIVER, Justice.

This action in equity was instituted June 6, 1935, on a $4,500 note of defendants, made in 1927, and due December 1, 1931 and a mortgage on 43 acres of farm land given to secure said note. The original mortgagees were one Siemsen and wife, from whom plaintiff alleged the note and mortgage were assigned and transferred to one Soltau and wife, and by said parties assigned and transferred to Dean P. Thomas, who thereafter assigned and transferred the same to plaintiff.

Defendants filed answer on November 15, 1937, and on March 20, 1939 amendment to answer. Thereafter plaintiff moved to strike various portions of said answer as amended, which motion was largely sustained by the court on October 24, 1939. Trial to the court, in November, 1939, resulted in decree for judgment against defendants on the note and foreclosure of the mortgage. Defendants have appealed.

I.

Stricken by the court from the original answer were certain general allegations of lack of consideration and failure of consideration of the note and mortgage and of each assignment and transfer thereof. Without discussing these allegations in detail, it may be said each of them is pleaded as a legal conclusion without any allegation of fact upon which the conclusion is based. Therefore, they were properly stricken. Benton v. Morningside College, 202 Iowa 15, 21, 209 N.W. 516.In the same category is a stricken general allegation that the transfers from Siemsen to the Soltaus were obtained fraudulently. It may be noted that there is retained in the original answer a general denial, a denial that plaintiff owns the mortgage, a denial that Siemsen transferred it to the Soltaus and a charge that each of the transfers was part of a plan to defraud Siemsen of his ownership of said note and mortgage.

In the amendment to answer defendants allege they executed the mortgage to the Siemsens to secure the unpaid balance of the purchase price of said real estate, that the validity of the Siemsen assignment is uncertain and that plaintiff is not the owner and holder of the note and mortgage in suit.

The aforementioned portions of the answer have no direct relation to the real controversy in this case and appear to be somewhat afield from it. In the trial defendants introduced no evidence attacking the validity of the Siemsen assignment and the record was undisputed that plaintiff was the owner and holder of the note and mortgage in question.

II.

The principal defense sought to be established by defendants is based upon the following circumstances: In March, 1934, defendants had secured tentative approval from the Federal Land Bank of Omaha for a Federal Land Bank mortgage and a commissioner's loan, aggregating $4,200, conditioned that the proceeds of both loans pay in full all of their indebtedness and that defendants secure a legal right of way to the land. September 12, 1934, the Soltaus, who then owned the mortgage, executed a unilateral consent agreement reciting that they, having been advised the defendants had made application to the Federal Land Bank for a loan upon the premises, " do hereby consent and agree to receive and accept in full payment, accord and satisfaction for said mortgage and interest accrued thereon the sum of $3500.00, and further agree and consent to accept in lieu of cash the bonds issued by said Federal Land Bank of Omaha of the face amount of $3500.00", upon delivery of which the satisfaction of mortgage may be delivered. At that time the mortgage was past due and there was owing thereon the sum of $4,500 principal plus delinquent interest. On April 16, 1935, the Soltaus transferred and assigned the note and mortgage to Dean P. Thomas for a consideration of $3,500. Thomas, in turn, assigned and transferred said instruments to plaintiff on May 8, 1935, and the petition in foreclosure was filed June 6, 1935. The suit was continued until 1939, apparently under the moratorium acts.

In their amendment to answer, filed March 20, 1939, defendants set up the agreement of the Soltaus to accept $3,500 in settlement of the mortgage and note, alleging in substance that defendants had in good faith secured the allowance of a loan from the Federal Land Bank and had incurred expenses for procuring abstracts of title, and had attempted to secure the required right of way to said land; that delays were encountered and condemnation proceedings required to secure said right of way; that the owners of the right of way appealed the condemnation proceedings to district court and in said appeal and previous negotiations were represented by the legal firm of which Dean P. Thomas was a member, which firm also instituted this action for plaintiff; that defendants did finally secure and pay...