Brown v. Barngrover

• Decision Date: 06 February 1891
• Citation: 47 N.W. 1082,82 Iowa 204
• Parties: S. D. BROWN, Appellee, v. M. G. BARNGROVER et al., Appellants
• Court: Iowa Supreme Court

47 N.W. 1082

82 Iowa 204

S. D. BROWN, Appellee, v. M. G. BARNGROVER et al., Appellants

Supreme Court of Iowa, Des Moines

February 6, 1891

Appeal from Taylor District Court.--HON. JOHN W. HARVEY, Judge.

THE plaintiff's petition shows a written contract between the plaintiff and M. G. Barngrover, whereby an exchange of real estate was agreed upon; the plaintiff giving a certain house and lot in Bedford, subject to a mortgage of one hundred dollars, which the defendant assumed for a certain one hundred and sixty acres of land, subject to a mortgage of eighteen hundred dollars, which the plaintiff assumed. That afterwards the defendant handed to the plaintiff a deed conveying said land, and an abstract purporting to show the title thereto, and the plaintiff gave to the defendant a deed conveying said lot. The plaintiff alleges that he took said deed and contract for inspection only, and found that the abstract was incorrect in that it showed a judgment in favor of C. Aultman & Co., with a statement that would imply that it was paid, when, in fact, as defendant, E. J. Barngrover knew, it was not paid, and when the plaintiff so learned he refused to proceed further, and demanded the return of his deed to the lot, which the defendants refused. He alleges that the defendants are insolvent, and brings their deed and abstract to the land into court, and asks that the defendants may be decreed to remove all liens except the eighteen-hundred-dollar mortgage; that they be enjoined from clouding the title to the lot, and, in the event they fail to remove the incumbrances, that the plaintiff have judgment for the money advanced on the contract, with interest; and that the same be made a lien upon the one hundred and sixty acres and for general relief.

The defendants answered denying that said judgment is a lien upon the land, and alleging that C. Aultman & Co. are estopped from enforcing said judgment against the land, by a letter set out, written by C. Aultman & Co., to the defendant, J. E Barngrover; that the plaintiff saw that letter at various times before the consummation of the contract, and made the contract relying thereon; that said judgment is by confession, in vacation, and has never been approved or signed by the court at any subsequent time; that the sworn statement upon which the confession was made does not state how the indebtedness arose; that no record thereof was ever made on the court record, wherefore the same is void; that at the time said judgment was obtained, the title to the one hundred and sixty acres was in Isabella Garron, one of said judgment debtors, in trust for William Garron, the real owner, the same having been conveyed to Isabella for the purpose of a prospective sale. The defendant, M. G. Barngrover, alleges as cross-claim that, in the consummation of said contract, the plaintiff became indebted to her in the sum of two hundred and twelve dollars and seventy cents, and executed his note therefor, but afterwards by false pretenses got possession of said note, and destroyed the same, and ever afterwards refused to execute another note or notes for said sum, wherefore she asks judgment. G. B. Haddock was made a defendant, and answered that he is the owner of the Aultman & Co. judgment by purchase, and asks that the cross-bill of the defendant Barngrover be dismissed, and that the judgment now have the approval of the court. A decree was entered in favor of the plaintiff, and the defendants Barngrover appeals.

Affirmed.

McCoun & Barngrover, for appellants.

Crum & Haddock, for appellee.

OPINION

GIVEN, J.

I.

We first inquire as to the validity of the judgment confessed by Isabella Garron and others in favor of C. Aultman & Co. The sworn statement upon which the judgment was entered shows that the parties making it were justly indebted to C. Aultman & Co., and states that the indebtedness arose as follows "On or about the twenty-sixth day of July, 1881, the said Isabella Garron, George Garron, N. R. Riley and J. A. Scroggie, made, executed and delivered to the said C. Aultman & Co. their three certain promissory notes in writing, words and figures as shown by copies of said notes hereto attached, marked Exhibits 'A,' 'B' and 'C,' respectively, and made a part hereof." The notes recite that they were given "for value received on one Sweepstakes...