Dilger v. Palmer

• Court: United States State Supreme Court of Iowa
• Writing for the Court: DAY
• Citation: 60 Iowa 117,14 N.W. 134
• Decision Date: 07 December 1882
• Parties: DILGER v. PALMER AND OTHERS.

60 Iowa 117
14 N.W. 134

DILGER
v.
PALMER AND OTHERS.

Supreme Court of Iowa.

Filed December 7, 1882.

Opinion upon rehearing.^a1

*134Mitchell & Penick and Wright, Cummins & Wright, for appellants.

Stuart Brothers, for appellee.

DAY, J.

Upon the petition of appellants a rehearing was granted in the foregoing case. The appellee replied to the argument of petitioners and the cause is again submitted for determination. The case is simply this: In 1873 T E. Palmer and wife executed a mortgage upon 80 acres of land, 40 acres of which constituted their homestead. Afterwards they subdivided the homestead 40 into three lots, designated as lots 1, 2, and 3. Subsequently, for the expressed consideration of $5,000, they conveyed by warranty deed the 40 other than the homestead, and lot No. 1 of the homestead, to C. H. Palmer. At the same time, for the expressed consideration of $3,000, they conveyed by warranty deed lot No. 3 to Anna L. Palmer. T. E. Palmer and wife still retain lot No. 2 and occupy it as a homestead. The plaintiff brings this action to foreclose the mortgage of 1873.

The defendants, Palmer and wife, filed a cross-petition asking that the lands conveyed by them be first sold in satisfaction of the mortgage, and that lot No. 2 be not sold except to satisfy a balance remaining after exhausting the other lands. We cannot regard this request of the defendants in any other sense than as inequitable and unreasonable. The defendants sold the lands with the usual covenants of warranty, and, as between the grantor and the grantee, it cannot be maintained that the conveyance was subject to the mortgage. T. E. Palmer, it must be assumed, received a full consideration for the conveyance, and his wife, in legal contemplation, received a sufficient consideration for the release of her dower. What equity is there in permitting them now, after they have received full consideration for an absolute conveyance, to turn upon their grantees and insist that the primary burden of the mortgage shall fall upon them, to the end that they (Palmer and wife) may hold a portion of the mortgaged premises discharged from the mortgage. It is insisted that if the majority opinion is adhered to, the way is rendered easy for depriving a wife of her homestead, by first inducing her to mortgage it with other lands, and then to convey the other lands. But this apprehended evil is more imaginary than real. The wife may always protect herself from such results by refusing to execute a...