Conn v. Tonner

• Decision Date: 24 October 1892
• Citation: 86 Iowa 577,53 N.W. 320
• Parties: CONN ET AL. v. TONNER ET AL.
• Court: Iowa Supreme Court

86 Iowa 577

53 N.W. 320

CONN ET AL.

v.TONNER ET AL.

Supreme Court of Iowa.

Oct. 24, 1892.

Appeal from district court, Woodbury county; SCOTT M. LADD, Judge.

Plaintiffs bring this action in equity to foreclose a mortgage upon real estate executed by Reinhart Sevening, deceased, and the defendant Mathilda Sevening, his wife, to James Conn, deceased, to secure the payment of one promissory note of said Reinhart Sevening to said James Conn. A. Hallam, who was made defendant, as claiming some interest in the land, answered, alleging that plaintiffs' mortgage was fraudulently procured, and that he had a prior and superior lien to said mortgage, and asking that plaintiffs' action be dismissed. Judgment was entered in favor of plaintiffs against the defendant R. Tonner, as administrator, for the amount claimed, and decree that plaintiffs' petition be dismissed as to all the other defendants, and that the title to the land be confirmed and quieted in the defendant Hallam. Plaintiffs appeal.Rollins & Berry, for appellants.

Hallam & Kelsey, for appellees.

GIVEN, J.

1. The following facts appear without question: On November 26, 1880, the board of trustees of the Iowa State Agricultural College and Farm executed a lease to John Burrows upon the lands in question under chapter 71, Acts 15th Gen. Assem., for the term of 10 years from that date, at an annual rental of $64, payable on the 26th day of November of each year, with a provision that a failure to pay should terminate the lease and forfeit all rights thereunder. Said lease contains this further provision: “And it is further agreed and stipulated that at the expiration of said term of said lease (provided the same shall not have been forfeited) said lessee, at his option, or his heirs or bona fide assignee, shall have the right to purchase said land at the said sum of five dollars per acre, and on payment thereof and the sum of two hundred dollars shall be entitled to a patent to said land.” On August 6, 1881, John Burrows assigned this lease to Reinhart Sevening. On October 4, 1882, Reinhart Sevening and the defendant Hallam entered into an agreement in writing as follows: “Witnesseth, that the said party of the first part hereby sells and assigns all his right and title in and to the annexed lease, upon this express condition: That the said party of the first part pay to the party of the second part, or his order, his two promissory notes, dated October 1, 1882,--one payable October 1, 1883, for $452, with interest thereon at ten per cent. per annum from date, and one payable October 1, 1884, for $452, with interest at ten per cent. per annum from date; and upon a failure of the said party of the first part to pay the money on said notes as agreed he agrees to pay all costs and collection...