Cook v. Prindle

• Decision Date: 09 April 1896
• Citation: 97 Iowa 464,66 N.W. 781
• Parties: COOK ET AL. v. PRINDLE ET AL. (SACKRISON ET AL., INTERVENERS).
• Court: Iowa Supreme Court

97 Iowa 464

66 N.W. 781

COOK ET AL.

v.PRINDLE ET AL. (SACKRISON ET AL., INTERVENERS).

Supreme Court of Iowa.

April 9, 1896.

Action in equity for judgment on a note, and the foreclosure of a mortgage securing it. A decree was entered granting a portion of the relief asked by plaintiffs, and denying them other relief, from which they appeal. Affirmed.

KINNE, J.

1. A rehearing was granted in this cause, and it has been again submitted to us for determination. The original opinion may be found in 63 N. W. 187.

April 1, 1870, Abial Prindle, Cordelia Prindle, Sarah A. Prindle, and Catherine Prindle executed to David W. Grimes their promissory note for $1,130.40, due two years after date, and drawing 10 per cent. interest, payable annually. August 1, 1870, the same defendants executed a mortgage to secure the payment of said note upon certain real estate. Said mortgage was duly recorded. This suit is brought for a judgment on said note, and for the foreclosure of said mortgage. February 15, 1882, the makers of said note and mortgage indorsed upon the back of said note the following: “We do hereby admit that this note, with interest, is unpaid, and renew the promise therein contained to pay the same, and the mortgage given to secure the same is to stand and continue in force for the security hereof.” This was signed by all of the makers of the note. January 25, 1876, said Prindles conveyed to the defendant Lukenbill 40 acres of the land which was embraced in their mortgage to Grimes. Lukenbill took immediate possession of said land, and continued to occupy it until September 17, 1888, when he conveyed the same to intervener Sackrison, who has ever since been in possession of it. April 16, 1886, said Prindles executed their note to E. Rabb for $3,000, and secured the same by a mortgage embracing all the land included within plaintiffs' mortgage, and other lands, except that the Lukenbill 40 acres was not embraced therein. Afterwards the Rabb note and mortgage were assigned to the defendant J. J. Seerley, and by him to his wife, L. L. Seerley. April 28, 1887, said Prindles executed their note to L. L. Seerley for $1,000, and secured the same by a mortgage upon the lands in controversy, except the Lukenbill 40, and other lands. March 20, 1888, said Prindles executed their note to L. L. Seerley for $1,750, and secured the same by mortgage upon the same lands. November 5, 1891, defendant Worthington obtained three judgments in the district court of Des Moines county against the defendant A. H. Prindle. At the tax sale on December 2, 1889, C. C. Clark purchased the real estate in question, except the 40 acres, for the taxes of 1888, and thereafter assigned the certificates to the defendant J. J. Seerley, who received tax deeds for the land after the commencementof this action, to wit, December 17, 1892. Defendants Prindle answered, averring that, at the time they executed the mortgage to Grimes, they only owned four undivided sevenths of the land described in the mortgage, and that, by mistake, said mortgage was so drawn as to cover the full title to said land. They asked that the mortgage be reformed. They also pleaded that, at the time the indorsement was made on the Grimes note, it was verbally agreed that the rate of interest should be 6 per cent. The other defendants joined in these allegations. Lukenbill answered, setting out the conveyance of the 40 acres by the Prindles to himself, and his conveyance of the same to Sackrison, and asking to be dismissed, with his costs. Sackrison intervened, and pleaded that he purchased the 40 acres of Lukenbill and wife in good faith, and without knowledge that there was a valid mortgage on the same; that plaintiffs' mortgage was barred; that the attempted renewal of said Grimes' note and mortgage was after the sale to his grantor Lukenbill, and after the grantors had parted will all their interest in said land, and was without effect as against him; that interveners had no notice or knowledge of said renewal when he made his purchase; and that Grimes knew of Lukenbill's purchase. He asks that said Grimes' mortgage be canceled as to his land, and that his title be quieted. Defendant Worthington answered, setting up her judgments, and joining in the allegation that the Grimes mortgage was only intended to convey four-sevenths of the land, and averred that A. H. Prindle had acquired title to the other three-sevenths of said land since the execution of the Grimes mortgage, and prior to the recovery of her judgments, and she claims a lien prior to said mortgage on said three-sevenths interest in said land. Plaintiffs contend that the three-sevenths interest acquired by A. H. Prindle inured to their benefit, under the Grimes mortgage. Defendant L. L. Seerley joins in the claim for the correction of plaintiffs' mortgage, and contends that said mortgage is junior to her mortgages, except as to the four-sevenths of the land owned by the Prindles. She asks a judgment and decree of foreclosure on her three notes and mortgages, and that her rights be decreed superior to those of defendant Worthington, and against plaintiffs, as to said three-sevenths of said land. Plaintiffs aver that J. J. Seerley and C. C. Clark, his partner, were attorneys in this case for the defendants Prindle, L. L. Seerley, and Worthington; that J. J. Seerley procured said tax title in secret trust, for the use and benefit of his said clients, and fraudulently seeks to use the same to defeat plaintiffs' prior lien on said lands. They offer to redeem from said tax sale, and ask to be permitted to do so, and that the deeds be set aside. The district court entered a decree for plaintiffs for the amount due on the Grimes note; for L. L. Seerley for the several amounts due on her notes and mortgages; and adjudged that J. J. Seerley had valid tax deeds to some of the real estate covered by the Grimes and L. L. Seerley mortgages, and that said mortgages were not liens upon said lands. As to other lands covered by the Grimes mortgage (not including the three-sevenths acquired by Prindle after it was executed), a decree of foreclosure was entered. The L. L. Seerley mortgages were also foreclosed as to certain lands. It was held that the renewal by the Prindles of the note to Grimes was void as to Lukenbill and Sackrison, and a foreclosure of the Grimes mortgage as to that 40 acres was refused. Plaintiffs were adjudged to pay the costs.

2. Upon the foregoing facts, the following questions are to be determined: (1) As to the alleged agreement for a reduction of interest on the Grimes note and mortgage. (2) Whether the showing is such as to justify the decree below finding that the Grimes mortgage erroneously embraced the entire title to the land described therein, when it should have conveyed only four-sevenths of it. (3) Whether plaintiffs' contention touching Seerley's tax titles is supported by the evidence. (4) Whether Lukenbill and Sackrison can successfully plead the statutes of limitation as against the lien of the Grimes mortgage on the 40 acres conveyed by the Prindles to Lukenbill, and by him to Sackrison.

There is no evidence establishing the alleged agreement for a reduction of the interest on the mortgage debt of the Prindles to Grimes; therefore judgment was properly rendered in plaintiffs' favor for the amount due on the Prindle note to Grimes.

The evidence established the fact that it was the intention of the parties, in executing the mortgage to Grimes, to have it cover only four-sevenths of the land therein described, it being also the interest then in fact owned by the mortgagors. It is certain that, by some oversight or mistake, the mortgage was so written as to embrace a full title to the land described rather than the four-sevenths, as intended. Plaintiffs insist, however, that the defendants are now barred from having a reformation of the mortgage in this respect. If this be true, it is no reason for giving plaintiffs a greater interest under the mortgage than the mortgagors possessed, and especially so when it appears that there was no intent to convey an interest greater than that then owned by the mortgagors. A. H. Prindle, one of the mortgagors, some time after the execution of the mortgage to Grimes, acquired title to the other three-sevenths interest in this land, and plaintiffs insist that this after-acquired interest inures to their benefits. Code, § 1931, provides: “Where a deed purports to convey a greater interest than the grantor...