Duncan v. Finn

• Decision Date: 13 February 1890
• Parties: DUNCAN v. FINN ET AL.
• Court: Iowa Supreme Court

79 Iowa 658

44 N.W. 888

DUNCAN

v.FINN ET AL.

Supreme Court of Iowa.

Feb. 13, 1890.

Appeal from district court, Taylor county; J. W. HARVEY, Judge.

Action in equity to recover the amount of certain mortgage bonds. The defendant Dunning filed a cross-petition, in which he demanded relief against his codefendant, Finn. There was a trial by the court, and a decree rendered in favor of plaintiff against Finn, and in favor of Finn as against Dunning. Both Finn and Dunning appeal.Lehman & Park and Cummins & Wright, for appellant Finn.

Crum & Haddock and Phillips & Day, for appellant Dunning, and for appellee Duncan.

ROBINSON, J.

On the 1st day of February, 1876, Lewis G. Parker executed and delivered to the Mercantile Trust Company of New York, his certain bonds, to the amount of $1,500, payable on the 1st day of February, 1881. To secure the payment of said bonds, Parker executed and delivered a trust-deed which conveyed “the west twenty-two feet of lot number six, in block number fourteen, in the original town of Bedford, Iowa.” On the 10th day of February, 1881, the trust company assigned the bonds to Mary W. P. Crane, of Cook county, Ill., and on the 30th day of September, 1884, she assigned them to plaintiff. On the 3d day of July, 1878, Parker conveyed, by warranty deed, all his interest in said premises to Dunning and two others, and the deed provided that Duning should assume and pay the aforesaid bonds. On the 8th day of March, 1880, Dunning and his co-grantee conveyed said premises to defendant Finn, by a warranty deed, which provided that it was subject to the deed of trust aforesaid, with interest from February 1, 1880. On or about March 11, 1881, Mary W. P. Crane and defendant Finn entered into an agreement in writing which recited the making of the loan to Parker, and further stated and provided as follows:

“And whereas, the said Lewis G. Parker and Addie M. Parker have conveyed the said mortgaged premises, and the same are now owned by one G. L. Finn, of Bedford, Iowa, who, in purchasing, has taken said real estate subject to the said loan of $1,500, above referred to, and the same being now due, and said Finn being desirous of having the said loan renewed and extended for the period of five years from and after the first day of February, 1881; and whereas, one Mary W. P. Crane * * * has purchased the said bonds and mortgage from said Mercantile Trust Company, and is now the absolute owner of the same, a full and complete assignment having been made therein to her: Now, therefore, in consideration of the foregoing premises, and other valuable considerations, the said Mary W. P. Crane hereby agrees to extend the time for the payment of the principal sum of said bonds till February first, 1886, upon the payment of the interest, at the rate of seven per cent. per annum, at the times stated and agreed upon in said bonds, and upon the full and complete performance of and compliance with all the conditions named and recited in said bonds and mortgage above mentioned. And it is hereby expressly agreed that, should any of the conditions of said mortgage, but especially those relating to the payment of interest at the times stated, and to the payment of taxes, and the effecting of insurance upon the property, not be promptly complied with, then this agreement for an extension of time shall be void, and the principal sum named and expressed in said bonds, as well as all the due and overdue interest which may have accrued thereon, shall become due and payable at once, at the election of the said Mary W. P. Crane, and the said Mary W. P. Crane may use any and all the remedies upon the said bonds and mortgage as, by the terms of said instrument, her assigns, or the said Mercantile Trust Company, could have used, in like case of forfeiture, while the said Mercantile Trust Company was owner of the same. The intention being to continue this loan for the term of five years, at the rate of seven per cent. per annum, upon the compliance with the terms of the bonds and mortgage above mentioned; and any condition in said mortgage and bonds as to said debt drawing interest at the rate of ten per cent. after the maturity of the note is expressly waived by said Mary W. P. Crane, and in that regard said bonds are treated as if they never had matured, but had been made for the term of ten years, instead of five. And, in case the bonds are due by reason of the noncompliance with the terms thereof as to the payment of interest, taxes, insurance, etc., the said Mary W. P. Crane may do and have the same remedies as the said Mercantile Trust Company could have done under like circumstances. It is further agreed that in future the interest that falls due on this loan may be paid by said Finn at No. 108 Dearborn street, in the city of Chicago. Dated this 8th day of March, 1881. MARY W. P. CRANE. By RICKEL & EASTMAN, Agents and Attorneys.”

“In consideration of the premises above named, I hereby accept the above conditions upon which said extension is granted, and I agree to carry out and execute the provisions of this agreement; and, should I fail or neglect so to do in any respect, I hereby authorize the holder of these bonds and said...