Decided
January, 1890.
Appeal
from Taylor District Court.--HON. 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 co-defendant, 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.
REVERSED.
OPINION
ROBINSON, J.
On the
first 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 fifteen hundred dollars
payable on the first 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 tenth day of February, 1881, the
trust company assigned the bonds to Mary W. P. Crane, of Cook
county, Illinois, and on the thirtieth day of September
1884, she assigned them to plaintiff. On the third 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 Dunning should assume and pay the
aforesaid bonds. On the eighth 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 fifteen hundred dollars, 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 assignor, 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 non-compliance 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 number 108 Dearborn
street, in the city of Chicago. Dated this eighth 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 mortgage to proceed, according to the terms and
conditions named, to foreclose and collect the same. Witness
my hand at Bedford, Iowa, this eleventh day of March, 1881.
"G.
L. FINN."
The
transaction between Finn and Dunning was in part an exchange
of real estate. Finn owned the property in which Dunning now
has a bank, which was valued at five...
