Fouche v. Delk
| Decision Date | 03 June 1891 |
| Citation | 48 N.W. 1078,83 Iowa 297 |
| Parties | B. R. FOUCHE, Appellant, v. F. O. DELK, Appellee |
| Court | Iowa Supreme Court |
Appeal from Decatur District Court.--HON. JOHN W. HARVEY, Judge.
ACTION to subject real estate to the payment of certain judgments. From the judgment as entered the plaintiff appeals.
Reversed.
Marion F. Stockey and W. B. Tallman, for appellant.
S. A Gates and Samuel Torrey, for appellee.
John Delk was in May, 1879, a resident of Decatur county, the head of a family, and the owner of seventy acres of land described as "north thirty acres of northwest quarter of northeast quarter of section 4, and the northeast quarter of the northwest quarter of said section 4, township 69, range 25." The thirty acres in the northwest quarter of the northeast quarter, and ten acres off of the east side of the northeast quarter of the northwest quarter, constituted the homestead of John Delk. In 1877, John Delk and his wife made to one G. A. Hamilton a mortgage on all of said land to secure the sum of one thousand dollars. In May and June, 1879, the plaintiff obtained against John Delk, in the district court of Clarke county, two judgments in the aggregate amount of two hundred and sixty-five dollars and ninety-two cents, and in the same months he filed duly certified transcripts of the same in the office of the clerk of the district court of Decatur county. The defendant is a son of John Delk; and in May, 1882, John Delk and his wife conveyed to the defendant all the land described, and made therefor two separate deeds, in one of which the homestead was conveyed and in the other the west thirty acres of the northeast quarter of the northwest quarter. The considerations expressed in the deeds are as follows: That in the one conveying the homestead being: "We deed said land as our homestead for the purpose of having the said Ferdinandus O. Delk provide us a comfortable home and living during the remainder of our lives; and it is expressly agreed that in case Ferdinandus O. Delk shall fail, neglect, or refuse to provide us a comfortable home and living the balance of our lives, then this deed to be null and void, and no title to pass from us." That in the other deed being: "Said consideration to consist in the said Ferdinandus O. Delk assuming and paying to George Hamilton, his executor or assigns, a certain mortgage executed to him by us on said thirty acres of land for one thousand dollars, together with all interest accrued thereon, fully relieving us from all liability by reason of said mortgage." John Delk and wife both died before the commencement of this action,--the latter in 1886, and the former in 1888; but were after the execution of the deed duly provided for by the defendant. The defendant afterwards paid to Hamilton the amount of his note and mortgage, and took an assignment as follows:
To obtain the money for the payment of Hamilton a note and mortgage on the thirty-acre tract was made to one Green, and afterwards the Green mortgage was paid, and a mortgage for eight hundred dollars was made to the defendant Hurst for the money applied to the discharge of the Green mortgage; the Hurst mortgage being still in part unpaid. The principal contention in the case is as to the legal effect of the payment of the Hamilton note; it being the claim of the plaintiff that it extinguished the lien of the mortgage, and gave priority to his judgment as against the thirty acres not a...
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