Clinton Sav. Bank v. Grohe

• Decision Date: 21 December 1901
• Citation: 88 N.W. 357,115 Iowa 292
• Parties: CLINTON SAVINGS BANK, Appellant, v. UNDERHILL, GROHE, Executrix, et al
• Court: Iowa Supreme Court

88 N.W. 357

115 Iowa 292

CLINTON SAVINGS BANK, Appellant, v. UNDERHILL, GROHE, Executrix, et al

Supreme Court of Iowa, Des Moines

December 21, 1901

Appeal from Clinton District Court.--HON. P. B. WOLFE, Judge.

ACTION in equity to reform and foreclose a mortgage on real estate. The issue here was tried only as between plaintiff and Olive S. Grohe, executrix. From an adverse decree, plaintiff appeals.--Affirmed.

Decree AFFIRMED.

Hayes & Schuyler and Chase & Seaman for appellant.

M. M. & C. C. Melchert for appellees.

OPINION

WATERMAN, J.

We granted a rehearing in this case, which was reversed in the opinion first filed (84 N.W. 667), because of an argument in support of the trial court's judgment, which was first presented by appellee in the petition for rehearing. Every argument presented on the original submission was disposed of, and, as we think, properly, in the first opinion written. But as it is doubtless our duty to sustain the trial court if there is any reason upon which it can be done, even though such ground may not be presented by counsel, we have reopened the case to give the new matter consideration. As plaintiff states its cause of action, it holds a mortgage executed by Hiram Underhill and his wife, Ada E., on lot 2 in Underhill's Second addition to the city of Clinton, but which, by mistake of the scrivener, describes the property as lot 1 in Underhill's First addition to said city. This action is to reform the description and foreclose the mortgage. It is also averred that after the execution of plaintiff's mortgage one W. C. Grohe took a mortgage from said Underhill and wife on lot 2 of Underhill's Second addition, but that said mortgage was without consideration and taken with full notice of plaintiff's prior lien, and is inferior and subject thereto. Hiram Underhill, his wife Ada E., and Olive C. Grohe, executrix of the estate of said W. C. Grohe, deceased, are made parties defendant. Under-hill and his wife defaulted, and a decree was taken against them as prayed. The questions we have to consider arose on the trial of the issue of priority of liens between plaintiff and Olive S. Grohe, executrix, and relate solely to the competency of certain witnesses. As against Olive S. Grohe executrix, it was incumbent on plaintiff, in order to establish the priority of its lien, to prove: (1) The mistake in its mortgage; and (2) that W. C. Grohe had notice of the fact that its mortgage was in fact on lot 2 in Underhill's Second addition when he took his mortgage, or that Grohe's mortgage was without consideration. The mistake in the mortgage, we think, is established by the testimony of the witness Seaman, whose competency is not questioned. But as to the matter of notice to Grohe, or the want of consideration in his mortgage, a different condition of affairs exists. The only evidence of these facts comes from Hiram Underhill and wife, who were witnesses for plaintiff, and who testify also as to the mistake. Their testimony makes plaintiff's case, if it can be considered. Objection was duly made to these witnesses under section 4604 of the Code, which prohibits a party to an action, or any person interested in the event thereof, or the husband or wife of any such party or person, giving evidence in relation to any personal transaction or communication between such witness and a person deceased at the time of the examination against the executor of such deceased person. It is insisted on behalf of the executrix that Underhill and his wife were doubly disqualified, for that they were both parties to the action, and persons interested in its results. A mere nominal party, or one who has no substantial interest in the action, is disqualified under this section. Williams v. Barrett, 52 Iowa 637, 3 N.W. 690; Burton v. Baldwin, 61 Iowa 283. But he must be in fact a party at the time of giving testimony, in order to render him incompetent to testify. If the action has been dismissed against him, he may give such evidence. Campbell v. Mayes, 38 Iowa 9. So also, if he is bound to a stipulation to a judgment against himself although the judgment has not been entered, the disqualification is removed. Conger v. Bean 58 Iowa 321, 12 N.W. 284. In this case this court said: "If James M. Bean was a party to the action within the meaning of the statute (section 3639, Code 1873; present Code, section...