Boynton v. Salinger

• Decision Date: 16 May 1910
• Parties: BOYNTON v. SALINGER ET AL.
• Court: Iowa Supreme Court

147 Iowa 537

126 N.W. 369

BOYNTON

v.SALINGER ET AL.

Supreme Court of Iowa.

May 16, 1910.

Appeal from District Court, Carroll County; Z. A. Church, Judge.

Plaintiff alleged his former ownership of lots 9 and 10 in block 3 of Carroll, and that on September 15, 1897, the parties hereto entered into an agreement by the terms of which C. D. Boynton and Cora B. Boynton undertook to convey said lots to Lucy M. Salinger, upon payment of $4,000 in payments as specified; that the first two installments and several sums had been paid, and prayed for judgment in the sum of $4,183.33, with interest at 7 per cent. per annum from June 15, 1908. The defendant answered by admitting the execution of the contract as alleged, demanding strict proof of plaintiff's ownership thereof, denying that the contract, save the credits alleged, was wholly unpaid, electing to have payments credited on the $1,000 last payable, and averred open, notorious, and adverse, continuous possession of the property since September 15, 1897, and that all payments save the last were barred by the statute of limitations. On hearing, the court entered a decree of foreclosure as prayed. The defendants appeal. Reversed and remanded.L. H. Salinger, for appellants.

W. C. Saul, for appellee.

LADD, J.

The contract for the sale of the lots, with house thereon and furniture therein, was executed September 15, 1897. By its terms, upon the payment of $4,000 as therein provided with interest, C. D. and Cora B. Boynton agreed to make to Mrs. Salinger “a full warranty deed to said premises covenanting therein against all liens and incumbrances.” Two hundred dollars of the price was paid upon the execution of the contract, and $800 November 1, 1897. The contract in fixing the times for payment of the remainder of the purchase price reads: “$1,000 more on or before January 1, 1898; $1,000 more on or before March 1, 1898, and the remaining $1,000 on or before July 1, 1898.” The deferred payments were to draw interest at the rate of 7 per cent. per annum, and “the said lots are holden to secure” such payments. The plaintiff prayed judgment for the deferred payments, with interest, and that the defendant be “required to perform her contract, or that her interest in said property be foreclosed.” This was not open to the criticism of demanding different and independent remedies; i. e., specific performance and foreclosure. Performance by defendant would have been by payment, and foreclosure is the remedy provided for enforcing this. The prayer did no more than demand that defendant be required to perform by paying the amount due, and that upon failure so to do, such performance be enforced through foreclosure proceedings, and therein was in strict compliance with section 4297 of the Code, which authorizes the vendor in such a case to “file his petition asking the court to require the purchaser to perform his contract or to foreclose and sell his interest in the property.” Therein the vendee is to be treated as the mortgagor of the property, and his rights therein foreclosed in a similar manner. Section 4298, Code. Upon ascertaining the amount due, the vendee may pay or allow the property to be disposed of to satisfy the amount owing. There was no error in ruling that there was no misjoinder of causes of action.

2. Appellants challenge the sufficiency of the petition in that it did not allege the tender of a deed conveying the property as a condition precedent to the maintenance of the action, nor tender such deed. Until full payment the vendors were under no obligation to convey, and for this reason such allegations were not necessary. Stevenson v. Polk, 71 Iowa, 278, 32 N. W. 340;Grimmell v. Warner, 21 Iowa, 11. Had the case been at law a different rule would prevail, for payment ought not to be exacted without requiring the execution of the conveyance as a condition, and such provision may be and is proper to be incorporated in the decree of foreclosure. Wall v. Ambler, 11 Iowa, 274.

3. The petition alleged that prior to the execution of the contract plaintiff was owner of the lots, and exception is taken to the decree because of the omission to introduce proof of title. Suit was based on the stipulations of the contract and their breach. The defendant admitted the execution thereof, and that she had taken possession thereunder. All exacted of the vendors thereafter was the execution of a deed such as stipulated; and, even though plaintiff may have alleged former ownership of the lots, this was not an element essential to be established in order to make out a prima facie case for relief as prayed.

4. This action was begun by the service of an original notice, June 29, 1908, more than 10 years after the payments to be made January 1 and March 1, 1898, became due, but a few days before the maturity of the payment of July 1st of that year. The defendant pleaded the statute of limitations in bar of all save the last payment. In this state the mortgage is an incident to the debt, and an action to foreclose is barred by the statute of limitations if then the statute has run against the debt. Newman v. De Lorimer, 19 Iowa, 244; Gower v. Winchester, 33 Iowa, 308; Smith v. Foster, 44 Iowa, 442. The same rule prevails in an action to foreclose a contract or bond for the sale of real estate; that is, if an action on the payments stipulated is barred, the statute may be successfully pleaded against an action to foreclose. Day v. Baldwin, 34 Iowa, 380. The point was not involved in Burdick v. Wentworth, 42 Iowa, 440, nor in Austin v. Wilson, 46 Iowa, 363, relied on by appellee. Both were actions of right, and all held was that in such actions the legal title will prevail over equitable interests. Our inquiry then may be limited to ascertaining whether the statute of limitations has run against any part of the purchase price claimed. Where a note or bill is made payable in installments, the statute attaches, and begins to run upon each installment as it becomes due, though the rule seems to be otherwise with reference to interest payable annually. Wood, Lim. § 126; Bush v. Stowell, 71 Pa. 208, 10 Am. Rep. 694; Burnham v. Brown, 23 Me. 400; Heywood v. Perrin, 10 Pick (Mass.) 228, 20 Am. Dec. 518;Napa Valley Wine Co. v. Daubner, 63 Minn. 112, 65 N. W. 143. This, also, is true of other contracts. Miles v. Kelly (Tex. Civ. App.) 25 S. W. 724;Davis v. Herrington, 53 Ark. 5, 13 S. W. 215;Wood v. Cullen, 13 Minn. 397 (Gil. 365); De Uprey v. De Uprey, 23 Cal. 352;Morrill v. County (Tex. Civ. App.) 33 S. W. 899;Tucker v. Randall, 2 Mass. 283;Foxell v. Fletcher, 87 N. Y. 480;Bartel v. Mathias, 19 Or. 482, 24 Pac. 918;Cocke v. Stewart, 2 Tenn. 232.

At the common law, an action of debt might not be maintained until all the installments had matured. 13 Cyc. 411. But in other forms of action, a different rule prevailed. In Bush v. Stowell, supra, the suit was in assumpsit on a joint promissory note for an amount specified, “one-fourth of the principal and the interest on the whole sum, on the first of June next and the balance in three equal yearly payments,” and the court, speaking through Sharswood, J., said: “Lord Coke announced the distinction between actions of debt and of covenant or assumpsit upon an agreement to pay a sum of money by installments, which has been recognized and followed since: ‘If a man be bound in a bond or by contract to another to pay a hundred pounds at five several days, he shall not have an action of debt before the last day be passed.’ ‘But if a man be bound in a recognizance to pay a hundred pounds at five several days, presently after the first day of payment, he shall have execution upon recognizance for that sum, and shall not tarry till the last be passed, for that it is in the nature of several judgments.’ ‘And so it is of a covenant and promise; after the first default, an action of covenant or an action upon the case doth lie, for they are several in their nature.’ Co. Litt. 292b. Lord Loughborough reviewed all the law on this subject in Rudder v. Price, 1 H. Bl. 547, in which it was held that an action of debt will not lie on a promissory note, payable by installments, till the last day of payment be passed. He shows that prior to the case of Cooks v. Whorwood, 2 Saund. 337, it was the uniform course, where an action of assumpsit was brought before all the installments were due, to allow a recovery in damages for those still to accrue and become due, upon the notion that after a judgment on the contract no further recovery could be had. Beckwith v. Nott, Cro. Jac. 504; Peck v. Ambler, Dyer, 113, and note; Milles v. Milles, Cro. C. 241. But in Cooks v. Whorwood, which was assumpsit to perform an award to pay money in installments, it was objected that all the days of payment were not past; but the court of King's Bench, Sir Matthew Hale being then Chief Justice, was clear that the action might be brought for such money only as was due at the time of bringing the action, and the plaintiff could recover damages accordingly; and when another sum of the money awarded should become due, the plaintiff might commence a new action for that also, and so toties quoties. The law must now be considered as settled in conformity to this doctrine.” The action on three installments was held to be barred for the reason that the action was in assumpsit, and not in debt. We are no longer concerned with the subtle distinctions between the different forms of action at common law which our ancestors seemed to delight in, for all forms of action have been abolished in this state, and all essential is that the pleader make a plain statement of the facts, without legal conclusions, upon which he relies. Section 3426, Code; Mentzer v. Telegraph Co., 93 Iowa, 752, 62 N. W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294.

Of course, the grounds for or causes of action remain as before, the procedure alone having been changed, and the remedy is no longer denied for no other...