Clark v. Holland

• Decision Date: 16 June 1887
• Citation: 72 Iowa 34,33 N.W. 350
• Parties: CLARK v. HOLLAND AND ANOTHER.
• Court: Iowa Supreme Court

72 Iowa 34

33 N.W. 350

CLARK

v.HOLLAND AND ANOTHER.

Supreme Court of Iowa.

June 16, 1887.

Appeal from circuit court, Boone county.

Action to foreclose a mortgage. Judgment and decree were rendered against the defendant Holland, but not against the defendant Phelps. The plaintiff appeals.Boal & Jackson and Geo. W. Crooks, for appellant.

No appearance for appellees.

ADAMS, C. J.

The mortgage in question was executed by the defendant Holland to one N. B. Brown, to secure a promissory note executed by Holland to Brown, and made payable to order. The note was sold upon an execution against Brown, and purchased by the plaintiff. The land upon which the mortgage was executed did not stand in Holland's name, and it seems probable that he never had the legal title. The defendant Phelps claims that he did not, and, for the purposes of the opinion, it may be conceded that he did not. Phelps found the legal title belonging apparently to Susan Brown, N. E. Brown, and H. T. Brown, and from them he obtained a deed paying a valuable consideration therefor.

It seems to be conceded that the land belonged originally to N. B. Brown. He died, and the legal title, we infer, passed to his widow, Susan Brown, and his sons, N. E. and H. T. Brown, who are the defendant Phelps' grantors. At the time the mortgage was executed, N. B. Brown held the legal title, and we have a case where the mortgagor appears, so far as the record shows, to have attempted to mortgage land, which not only did not belong to him, but which belonged to the mortgagee. The real fact appears to be that Brown sold the land to Holland, but for some reason omitted to make a deed. Notwithstanding such omissions, however, he took a mortgage upon the land from Holland, which is the mortgage in question. Holland, then, at the time he executed the mortgage, was the equitable owner, and the mortgage had the effect to bind the interest, as against all persons who had actual knowledge of such interest, or knowledge of facts which were sufficient to put them upon inquiry.

The evidence shows that before Phelps purchased he discovered, in some way, the record of the mortgage, and heard it read at least in part. The fact of the record known to Phelps was sufficient to lead to the inference that a mortgage had been executed, and we think that the case is not different from what it would have been if Phelps had seen the mortgage in the hands of the holder. St. John v. Conger, 40 Ill. 535.

It is true that even then the mortgage would not appear to be a lien upon the property, because Holland did not appear to have title. But the existence of the mortgage was a significant fact, and especially as it ran to the...