Crooks v. Jenkins

• Decision Date: 10 June 1904
• Parties: CROOKS v. JENKINS ET AL.
• Court: Iowa Supreme Court

124 Iowa 317

100 N.W. 82

CROOKS

v.JENKINS ET AL.

Supreme Court of Iowa.

June 10, 1904.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action to foreclose a mortgage executed by Mrs. W. T. Jenkins and husband to plaintiff October 29, 1897, and recorded on the day following, to secure the payment of a note of $775, dated July 13, 1896, and due December 13, 1897, bearing interest at the rate of 8 per cent. per annum. Mrs. Jenkins and husband conveyed the property mortgaged to William Patterson April 14, 1897, but the deed was not recorded until January 1, 1899. He had been a tenant of Tascott, from whom Mrs. Jenkins purchased, and continued in possession as her lessee. Patterson pleaded that the deed was made to secure what Jenkins owed him and might become indebted to him in the future. The Jenkinses defaulted, and decree was entered against them as prayed November 29, 1902. The issues between plaintiff and Patterson were tried in January, 1903, and a decree entered establishing Patterson's claim to the amount of $742 as a lien on the property superior to plaintiff's mortgage. The plaintiff appeals. Modified.Bowen & Brockett, for appellant.

Berryhill & Henry, for appellees.

LADD, J.

Patterson was in occupancy of the land in controversy as a tenant when Mrs. Jenkins, his daughter, purchased it, and thereafter paid rent to her until she conveyed the property to him in April, 1897. After receiving the deed, he paid the interest on two mortgages on the property--one of $1,000 and another of $200--and also the taxes, but no rent, save as these items were to be so applied. This deed was mailed to Patterson by Mrs. Jenkins from Boone, and in a few days was followed by a letter from her stating, in the words of Mrs. Patterson, that “she had sent us this deed and security for what they owed us--what we would pay on the place. This letter was to tell us this deed was for security for what we was putting in the place. At the close she said, ‘Put away this letter, for no one knows what may turn up.’ ” On cross-examination she declared that the letter said, “We have sent you a deed to secure your interest and what we owe you in the place,” and that “this was word for word what was in the letter.” Notwithstanding the admonition to preserve it, the communication was lost. Mrs. Jenkins, who wrote it, testified that it advised her father and mother “they could hold that for the $75. We didn't owe them any more money. * * * I never said anything to them at any time about holding it for any other money. * * * I had said in the letter the deed would be security for the $75. I never changed that agreement.” No one else pretends to state the contents of the letter, and, from what we have set out, it is apparent that the object disclosed was to secure an existing indebtedness. True, the subsequent conversations between the parties tended to enlarge the debt to be secured by the deed, but all these occurred after plaintiff's mortgage had been executed and recorded. The indebtedness was then but $75, and, in making an agreement thereafter, if any there was, with respect to future advances for interest and taxes, the parties were charged with notice of this mortgage, and such payments made subject thereto. In other words, the lien of plaintiff's mortgage attached to Mrs. Jenkins' equitable title, subject to existing incumbrances, but not to any that the parties by contract, oral or written, might thereafter choose to create.

2. Prior to taking the mortgage, the plaintiff, with Jenkins, examined the property, and testified that while there he met Patterson, and that the latter, upon inquiry, declared “he was only a tenant there, and had no interest; that the property belonged to his daughter.” Jenkins claims to have gone into the house, and upon his return to have asked Crooks if he had found out who owned the place, when Patterson said he had just informed Crooks that he had no interest there, save to pay rent. On the other hand, Patterson denied having any talk with them, and Mrs. Patterson swore that when they were there her husband was away. She further explained that Jenkins came to the house and inquired if the deed had been recorded, and, upon being informed that it had not, left with plaintiff, whom she did not meet. Jenkins concealed from the latter the execution of the deed, because, as he explains, it was none of his business. The record suggests no motive on the part of Patterson for falsely representing that he had no other interest in the premises than as tenant, and we are inclined to concur with the trial court in its conclusion that he did not do so.

3. The plaintiff took the mortgage without notice of the deed to Patterson, other than the possession of the premises afforded. The doctrine that a purchaser of real estate--and a mortgagee has been held to be such--takes the same charged with notice of the equities of a person, other than the vendor, in possession at the time of the purchase, is not questioned. O'Neill v. Wilcox, 115 Iowa, 15, 87 N. W. 742. But like other general rules, this has its exceptions. Thus, when possession is consistent with the record title, it is presumed to be under such title, and is not notice of outstanding, unrecorded equities. Rogers v. Hussey, 36 Iowa, 664;Brown v. Wade, 42 Iowa, 647;Bonnell v. Allerton, 51 Iowa, 166, 49 N. W. 857;May v. Sturdivant, 75 Iowa, 116, 39 N. W. 221, 9 Am. St. Rep. 463. This is on the ground that, having given notice to the world of his estate in land by a proper record of a conveyance to himself, a possession justified by said recorded title is to be presumed to have been under such title, and is not notice of any other which he may have subsequently acquired, but which, through neglect, he has failed to record. Dutton v. McReynolds, 31 Minn. 66, 16 N. W. 468. So, too, where a vendor remains in possession after a conveyance, such possession, unless long continued, is not notice to subsequent purchasers of any rights reserved inconsistent with his conveyance. Sprague v. White, 73 Iowa, 670, 35 N. W. 751;Koon v. Tramel, 71 Iowa, 132, 32 N. W. 243. Such possession is to be presumed to be continued by...