First Nat. Bank of Sigourney v. Woodman

• Decision Date: 01 February 1895
• Citation: 62 N.W. 28,93 Iowa 668
• Parties: FIRST NAT. BANK OF SIGOURNEY ET AL. v. WOODMAN ET AL.
• Court: Iowa Supreme Court

93 Iowa 668

62 N.W. 28

FIRST NAT. BANK OF SIGOURNEY ET AL.

v.WOODMAN ET AL.

Supreme Court of Iowa.

Feb. 1, 1895.

Appeal from district court, Keokuk county; David Ryan, Judge.

The defendant Eliza K. Woodman is the executrix of the estate of Mrs. M. M. Howe, deceased. On the 1st day of December, 1876, one John Q. Howard made to A. J. Kane his two promissory notes, aggregating $1,239.02, and secured the same by mortgage on real estate in Keokuk county. Both of these notes matured, by their terms, January 4, 1878. On the 24th day of March, 1877, these notes were sold to Mrs. M. M. Howe, the negotiations on her part being conducted by her agent, J. B. Treat. Before the assignment of the notes to Mrs. Howe, there had been paid on the principal of the notes $49.02. Since the assignment to the plaintiff, only the interest up to July 1, 1888, has been paid. Mrs. Howe was, prior to and at her death, a resident of Wisconsin, as was also her agent, Treat. On the 1st day of February, 1888, Howard made to one J. Oelmayer his two notes, for $312.50 each, and secured them by a mortgage on the same real estate. The other plaintiff is the Keokuk County Bank, and Oelmayer sold to each of the plaintiff banks one of the notes. Redhead, Norton, Lathrop & Co. appeared as defendants in the suit, and on the 7th of March, 1888, Howard made to the firm his note for $2,498.20, and secured the same by mortgage on the real estate. In August, 1889, the banks foreclosed their mortgage, and made Redhead, Norton, Lathrop & Co. and Mrs. Howe defendants. Redhead, Norton, Lathrop & Co. answered, and Mrs. Howe, being a nonresident and served by publication, made default. The decree in that proceeding fixed the lien of the plaintiff banks as first, and that of Redhead, Norton, Lathrop & Co. as second, leaving that of Mrs. Howe as junior to both. In March, 1891, Mrs. E. K. Woodman, as executrix of the will of Mrs. Howe, who had since died, presented an answer and cross petition; and, under the provisions of the law as to judgments entered upon default and service by publication, the court granted her a trial. In her answer she pleaded a revivor of the debt,--that would otherwise be barred,--by written admissions, and in her cross petition she asked a foreclosure of her mortgage as a first lien. Issue was taken on her pleadings by plaintiffs and Redhead, Norton, Lathrop & Co., so that the question of the priority of liens is presented. The district court gave to Mrs. E. K. Woodman a judgment and foreclosure, with a right of redemption, but denied to her a prior lien, and she appeals. Some additional facts may be stated in the consideration of the questions presented. Reversed.Hubbard & Dawley, for appellant.

Woodin & Son and J. P. Talley, for appellees First Nat. Bank of Sigourney and Keokuk County Bank.

N. B. Raymond and C. H. Mackey, for appellees Redhead, Norton, Lathrop & Co.

GRANGER, J.

1. It will be seen from the statement of facts that the Kane debt, which is that of appellant, is barred by the statute of limitations, because more than 10 years elapsed after the maturity of the last note before action, and also before the mortgages of the banks and Redhead, Norton, Lathrop & Co. were taken. If the statute of limitations is available for these mortgagees, the judgment is correct, unless the cause of action on the note and mortgage of Mrs. Howe had been revived. The revivor is claimed because of certain letters from the debtor, Howard, to Treat, who was at all times the agent for Mrs. Howe. The letters are as follows:

“Sigourney, Iowa. July, '86. J. B. Treat, Esq.: Inclosed find draft for $50, for which please acknowledge receipt. The balance will be sent soon. Yours, respectfully, J. Q. Howard.”

“Sigourney, Iowa. Dec. 3, 1886. J. B. Treat: Inclosed find draft for $45.20, balance of interest on notes to July 1, 1886. Please excuse delay, as I have been waiting on sale of produce from farm, but will wait no longer, and therefore send you the amount to-day. Yours, respectfully, J. Q. Howard.”

“Sigourney, Iowa. Dec. 6, 1887. J. B. Treat, Esq.: Inclosed find draft for $45.20, to pay balance of interest. Thanks for waiting. Yours, respectfully, J. Q. Howard.”

“Sigourney, Iowa. June 6, 1888. J. B. Treat, Esq.: Inclosed find draft for $50.00, to pay interest on note. Will pay balance as soon as I can. Yours, respectfully, J. Q. Howard.”

“Sigourney, Iowa. June 14, 1888. J. B. Treat, Esq.: Inclosed find $45.20 draft, to pay balance of interest on notes to July 1, 1888. Yours, respectfully, J. Q. Howard.”

“Sigourney, Iowa. Nov. 18, 1889. J. B. Treat, Esq.: I hope to be able soon to pay the interest. I am very sorry that it has not been paid. Now, I expect money from different parties. It may not come for six weeks, and it may come any day. I will have to ask your favor to wait a little longer. Will certainly send it as soon as I can, some or all of it; and I hope also, if possible, to pay the principal, if successful in my projects. Yours, respectfully, J. Q. Howard.”

A difficulty with these letters seems to be in knowing to what debt they refer. That they refer to a debt evidenced by a note is not to be doubted. That fact appears from the language of the letters, but the letters do not identify the particular note or notes in a way to say, from the letters themselves, that they amount to an admission or promise as to a particular debt. Appellant offered to show by Mr. Treat, who received the letters and applied the payments, to what debt they referred. His testimony shows that he resides in Monroe, Wis., where Mrs. Howe resided in her lifetime; that he was administrator of her husband's estate, and negotiated, on behalf of Mrs. Howe, the purchase of the Kane notes and mortgage; that she paid the full face value for them; that except for one month, until delivery for this suit, they were in his possession, as the agent for Mrs. Howe; that they were the only notes held by him, made by Howard; and that he received the letters offered in evidence, and applied the remittances contained in them on the notes in suit. By this testimony, the identity of the notes, referred to in the letters, is conclusively established. But it is said the testimony is not competent for such a purpose. That such testimony is competent has support in Wise v. Adair, 50 Iowa, 104,Stout v. Marshall, 75 Iowa, 498, 39 N. W. 808, and Miller v. Beardsley, 81 Iowa, 720, 45 N. W. 756. It is conceded that these cases so hold, but it is urged that the holdings are erroneous, and in conflict with Parsons v. Carey, 28 Iowa, 431, and Collins v. Bane, 34 Iowa, 385. We see nothing in either of those cases not in entire harmony with the rulings in the other cases. The question considered in the Parsons Case is as to the effect of a particular payment in arresting the operation of the statute of limitations. That is not the question we are considering, nor do the cases said to embody the erroneous rule treat the question as to the effect of a payment on the statute of limitations. While the letters relied on as containing the requisite admissions and promises to revive the cause of action are, mostly, those of remittances, it is not the fact of payment that is relied on, but the statements in the letters signed by the party. In the Collins Case we think the rule of the three cases said to be erroneous has express recognition or sanction. In that case, in commenting on the admissibility of parol evidence to explain a letter relied on as reviving the cause of action, it is said, upon the authority of 1 Greenl. Ev. §§ 277, 282, 290, that it is a well-settled rule that parol evidence “is admissible to show the subject-matter referred to, the person intended, and the surrounding circumstances of the author of the instrument.” The rule thus stated is liberal. It permits parol evidence to show the person, the subject-matter, and the surroundings. Nothing more was done by Treat in this case. At least, his testimony is not important to a greater extent. What was doubtful in the letters was the subject-matter,--the debt. The Collins Case refers to Penley v. Waterhouse, 3 Iowa, 418, where a similar rule is recognized. It is, however, said as to the Penley Case that the holding was under a different statute. The statutes, then and now, differ only in this: that the present statute requires that the admission or promise to arrest its operation shall be in writing, signed by the party. If, as the statute then was, extraneous evidence could be used to enable the jury to apply the particular verbal statements relied on to revive the action, we do not see why they may not as well be used under the present law for the same purpose. That seems to have been the thought in the Collins Case, which, being under the present statute, refers to the Penley Case as sustaining the conclusion announced. Appellee quotes from the Collins Case the fifth divisionof the opinion, as follows: “The plaintiff int...