Fitzgerald v. Flannagan

• Court: United States State Supreme Court of Iowa
• Writing for the Court: WEAVER
• Citation: 125 N.W. 995
• Decision Date: 11 April 1910
• Parties: FITZGERALD v. FLANNAGAN.

125 N.W. 995

FITZGERALD
v.
FLANNAGAN.

Supreme Court of Iowa.

April 11, 1910.

Appeal from District Court, Allamakee County; L. E. Fellows, Judge.

Action in equity to remove a cloud from plaintiff's title to land occasioned by the record of a mortgage given thereon by a prior owner, which mortgage is alleged to be barred by the statute of limitations. Decree as prayed and defendant appeals. Affirmed.

[125 N.W. 995]

William S. Hart, for appellant.

D. J. Murphy, for appellee.

WEAVER, J.

At some time prior to the year of 1874 Timothy Fitzgerald became the owner of the land in question. He had two sons Ed and John. In the year named Ed married, built a house upon the land, and lived there under an alleged agreement and understanding with his father that he would convey the farm to the two sons. Ed has lived on the land ever since. On March 8, 1880, Timothy Fitzgerald made the mortgage now in controversy to Peter Flannagan. In the year 1884 Timothy conveyed the land by warranty deed to his sons Ed and John, and later John conveyed his interests to Ed who is the plaintiff herein. The deed from Timothy to his sons recites a consideration of $3,000, and the warranty clause therein covenants

[125 N.W. 996]

that the grantor “is well seised of said premises of good, sure, perfect, absolute, and indefeasible estate in the law in fee simple, and that the same are free from all incumbrances whatever except a certain mortgage bearing date the ______ day of ______, 18--.” It contains no assumption by the grantees of any incumbrances or any undertaking by them to pay a mortgage indebtedness. The mortgage in suit was, as we have already noted, executed March 8, 1880, and purports to be security for the payment of one promissory note of Timothy Fitzgerald for $288 due March 8, 1883, with interest at 10 per cent. The mortgagor has been dead many years. Peter Flannagan, the mortgagee, survives, but far advanced in years, and his business has been attended to principally by his daughter who lives with him.

This action was instituted August 25, 1904, to obtain a decree canceling the mortgage of record as being barred by the statute of limitations and unenforceable against the plaintiff. It is also alleged that the mortgage debt has been paid. In answer, defendant denies that the mortgage debt is barred, alleges that it has been revived from time to time by new promises and new acknowledgments of indebtedness, and by way of cross-bill he asked that the lien may be enforced for the payment of said debt. To avoid the plea of the statute of limitations to his cross-bill the defendant alleges that after the conveyance by Timothy Fitzgerald to his sons as aforesaid the present plaintiff wrote and sent to the defendant Peter Flannagan a letter in which he referred to the said mortgage debt in words as follows:

“Harpers Ferry, Dec. 21.

Mr. Flannagen:

Dear Sir: We have gott youre money for you. It will be ready for you the fifteent of

February

Without Fale.

the man that We gott the money from Will have the money ready from the first to the 15 of February

From youre Friends

J. & Ed Fitzgerald.”

It is further alleged that at a later date said plaintiff wrote and sent another letter to said defendant in which again referring to the same indebtedness he said:

“Harpers Ferry, Aug. 3--95.

Mr. Flannagan,

Friend Peter.

I received Notice from Webster a few days ago demanding that money amedatly. I will be able to pay it by the 15 of November and not before So dont make no costs that is not necessary,

+-----------------------------+
                ¦Yours truly,¦Ed Fitzgerald.” ¦
                +-----------------------------+
                

It is further alleged that plaintiff at various times wrote other letters to plaintiff on the same subject acknowledging the debt and promising to pay the same, but that said writings are now lost and cannot be produced. Issue was taken by plaintiff upon the cross-bill and the testimony taken in the form of depositions.

The principal, and, as we think, the decisive, question is whether the defendant has made a sufficient showing of a revivor of the mortgage debt to prevent the operation of the bar of the statute. The rule as to the operation of the statute of limitations in this state differs so materially from those obtaining under...