Dean v. Ridgeway
| Decision Date | 15 May 1891 |
| Citation | 48 N.W. 923,82 Iowa 757 |
| Parties | DEAN v. RIDGEWAY ET UX. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Allamakee county; L. O. HATCH, Judge.
Action in chancery to foreclose a mortgage executed by defendants to plaintiff's intestate. Upon a trial on the merits, the district court dismissed plaintiff's petition. He now appeals to this court.Stilwell & Stewart and Hendrick & Deremore, for appellant.
D. W. Reed and J. H. Trewin, for appellees.
1. The mortgage in suit secures five promissory notes providing for annual interest, and contains a condition to the effect that, on a failure to pay either principal or interest of the notes when due, the whole amount shall become due and payable, and the mortgage may be foreclosed therefor. It is alleged in the petition that on the 11th day of March, 1887, the sum of $573.39 was due upon the notes secured by the mortgage, and on that day defendant executed to intestate a promissory note for that sum, due one day after date. It is admitted in the petition that on the 16th day of May following the execution of the note the sum of $25 was paid thereon. But it is alleged no other payments have been made on the interest. The defendants maintain, and so plead, that the interest on the promissory notes secured by the mortgage has been paid. They insist, and so testify, that the note for $573.39 was not given for interest, but upon an account for rent, cash borrowed, and other items of indebtedness. They do not state or claim that the note has been paid.
2. In our opinion, the strong preponderance of the evidence shows that the note for $573.39 was given for interest. This is shown by frequent admissions of defendant proved at the trial, the fact that the amount of the note is the sum due for interest on the day the note bears date, and other circumstances we need not here recite. We are clear in the conclusion that the note was given for the interest. Defendants testify that the interest was paid before the note referred to was executed, and that payments thereof were made at the maturity of the interest. Their testimony on this point, it is claimed, is supported by indorsements on each note, in the following language:
“Interest paid on the within note to March the 10, 1887. We, C. H. Burgess and Barbara Burgess, in consideration of the maker of the within notes having paid so much interest thereon, and in further consideration of the many acts of kindness bestowed upon us by the said maker, Joel Ridgeway, do therefore hereby provide that this note shall not draw interest from and after March 10, 1887, and we do hereby release him from the payment of any more interest on the within note.
CHARLES his X mark. H. BURGESS.
BARBARA her X mark. BURGESS.
Witness: MALINDA JOHN.
AL WILBER.”
The defendant testifies that he wrote the first indorsement reciting the payment of the interest, which appears in his handwriting. It is shown that the other indorsement was made by another person, upon the request of the wife of the intestate, who was not present. It was taken by the wife to her home in order to procure the signature of her husband, and the evidence shows that he afterwards signed it. It clearly appears that this indorsement was not signed until after the day it was written and bears date, and that the interest was calculated up to that date, and amounted to the sum expressed in the note. There is no...
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