France v. Holmes

• Decision Date: 26 January 1892
• Citation: 51 N.W. 152,84 Iowa 319
• Parties: WM. FRANCE, Appellee, v. G. B. HOLMES et al., Appellants
• Court: Iowa Supreme Court

51 N.W. 152

84 Iowa 319

WM. FRANCE, Appellee, v. G. B. HOLMES et al., Appellants

Supreme Court of Iowa, Des Moines

January 26, 1892

Appeal from Polk District Court.--HON. MARCUS KAVANAGH, Judge.

ACTION to foreclose a mortgage. There was a decree for the plaintiff, from which defendant Knudtson appeals.

Affirmed.

Ira W Anderson, for appellant.

J. K Macomber and Frank Y. Locke, for appellee.

OPINION

GRANGER, J.

The mortgage in suit was executed to the plaintiff July 9, 1887, by the defendant Holmes, "on the east half of lots one (1) and two (2) of Knudtson's addition," to secure a note for two hundred twenty-five dollars, of the same date. The petition averred that defendant Knudtson claimed some interest in the lots, and asked that his interest be decreed junior to that of the plaintiff. The defendant Holmes made default, and Knudtson answered, denying the allegations of the petition, and averring that he was the owner of the land described in the petition, and that the conveyance of the same to the defendant Holmes was without consideration, and that it had been decreed in an action in the district court of Polk county that the defendant Holmes had no interest therein. The only question on the appeal is as to the validity of the plaintiff's mortgage against the defendant Knudtson. Knudtson was a prior owner of the mortgaged premises, and had conveyed them to Holmes prior to the execution of the mortgage, and Holmes was in possession of them. The deed to Holmes by Knudtson was for certain lands in Tennessee, and the want of consideration for the deed to Holmes is claimed to be because of a failure of title to the Tennessee lands. The only evidence of a want of title to the Tennessee lands is the result of an adjudication in the district court of Polk county, at the suit of Knudtson against Holmes and one, P. D. Swick, who was Knudtson's grantor in the deed to the Tennessee lands. Before the mortgage in suit was executed, the plaintiff, through his general agent, had notice of a dispute between Knudtson and Holmes as to the bona fides of Holmes' title to the lots in question, but just the character of the dispute the evidence leaves in doubt; but we may treat it as sufficient to put the plaintiff on inquiry as to the merits thereof.

To justify a decree for Knudtson, it must appear, in addition to the fact of the plaintiff's knowledge to put him on inquiry, that there was a failure of title...