Byington v. Fountain
| Citation | 14 N.W. 220,61 Iowa 512 |
| Parties | BYINGTON v. FOUNTAIN ET AL |
| Decision Date | 20 September 1883 |
| Court | Iowa Supreme Court |
Appeal from Johnson Circuit Court.
THIS is an action in equity to quiet the title to land. The court dismissed the plaintiff's petition, and he appeals. The material facts are stated in the opinion.
AFFIRMED.
Byington Bros., for the appellant.
Boal & Jackson and Baker & Ball, for the appellees.
The case will be best understood by a chronological statement of the material facts. On the twenty-sixth day of January, 1867 R. H. Paddock, being the owner of the land in controversy executed a mortgage thereon to the Amana Society, to secure the payment of two notes of $ 50 each, and one note of $ 500, payable in one, two, and three years. On the thirty-first day of October, 1867, Robert H. Paddock deeded said land to Rush Clark and George J. Boal, they at the same time executing to him a bond, reciting that the conveyance was in consideration of moneys advanced and professional services rendered, and agreeing to deed back the premises upon payment of all sums justly due, and interest at ten per cent. On the twenty-fourth day of January, 1868, for the consideration of $ 1,050, Paddock assigned his interest in this bond to Charles McCallister, as trustee of the children of Le Grand and Mary Byington, and authorized him to receive the deed for the land, and the rents and profits from the date of the assignment. On the first day of February, 1868, Charles McCallister assigned this contract to Seymour L. Byington, one of the children mentioned in the assignment to him. On the twenty-ninth of April, 1869. Clark and Boal conveyed said premises to John Campbell by a deed warranting the title, except against the mortgage to the Amana Society. On the twenty-third day of October, 1869, the Amana Society assigned the notes and mortgage in question to Seymour L. Byington.
In November, 1870, the plaintiff, by his duly appointed guardian, brought suit to foreclose said mortgage against Robert H. Paddock and wife, making George J. Boal and Rush Clark parties defendants as subsequent encumbrancers, but not making Campbell a party, who, at that time, had succeeded to all the interest of Clark and Boal.
On the twentieth day of February, 1872, the defendants withdrew all claim for affirmative relief, and Clark and Boal admitted the allegations of the petition, and judgment was rendered in favor of the plaintiff for $ 771 and costs.
On November thirteenth, 1879, Campbell and wife reconveyed all their interest in said property to William J. Haddock and Mrs. Mollie A. Boal, and on October twenty-eight, 1880, William J. Haddock and his wife, and Mollie A. Boal and George J., her husband, executed two deeds, each conveying an undivided half interest in the land to the defendant, Andrew J. Fountain.
July ninth, 1880, the property was sold upon execution under the mortgage foreclosure to L. G. and S. L. Byington for $ 1,438.35. The certificate of purchase was assigned to plaintiff, and a sheriff's deed was executed to him July 11, 1881.
On the ninth day of September, 1881, this action was commenced, the plaintiff praying in his petition that the original foreclosure proceedings may be completed; that defendants' equity of redemption from said original mortgage may be foreclosed, and that they may be estopped from asserting any title adverse to petitioner, and that petitioner's title may be quieted.
As Campbell, who, at the time of the foreclosure of the senior mortgage executed to the Amana Society, had succeeded to the rights of Clark and Boal, was not made a party to that foreclosure proceeding, the object of this action is to compel those who have succeeded to his rights to redeem from the Amana mortgage, and, in the event of their failure to do so, to bar them of any interest in the property.
Both parties to this controversy concede that the deed from Paddock to Clark and Boal, in connection with the bond for a reconveyance, constituted a mere mortgage from Paddock to Clark and Boal. Paddock, then, was the owner of the land encumbered by a senior mortgage to the Amana Society, and a junior mortgage to Clark and Boal. It was the legal duty of Paddock to discharge both of these mortgages, or, more properly...
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