Golden v. Hardesty

• Decision Date: 30 January 1895
• Citation: 61 N.W. 913,93 Iowa 622
• Parties: GOLDEN v. HARDESTY ET UX.
• Court: Iowa Supreme Court

93 Iowa 622

61 N.W. 913

GOLDEN

v.HARDESTY ET UX.

Supreme Court of Iowa.

Jan. 30, 1895.

Appeal from district court, Pottawattamie county; A. B. Thornell, Judge.

Action in equity to recover the amount due on a promissory note, and to foreclose a mortgage given to secure its payment. There was a hearing on the merits, and a decree in favor of the defendants, Joseph C. and Lenora C. Hardesty. The plaintiff appeals. Affirmed.Will H. Thompson, for appellant.

Harl & McCabe, for appellees.

ROBINSON, J.

The defendants, Joseph C. and Lenora C. Hardesty, are husband and wife. In June, 1890, the husband owned lots 6 and 7 in block 29 in Mullen's subdivision of the city of Council Bluffs, and they occupied them as their place of residence. On the 4th day of the month they signed and acknowledged a deed for each of the lots, from which the names of the grantees were omitted. As thus executed, the instruments were left in the possession of a man named Daniels. In the one which purported to convey lot 6 the name of John W. Hodgman as grantee was subsequently inserted, and the deed was recorded. The abstract states that it was recorded on the day of its date, but a stipulation signed by the parties, and filed, shows that it was recorded on the 13th day of October, 1890. On that date there was also recorded a mortgage of the lot from Hodgman to John W. Foster. That was dated on the 16th day of June, 1890, and purported to secure the payment of a note for the sum of $625. The name of the payee was indorsed in blank on the note, and that and the mortgage passed into the possession of Stephen Milholen. In March, 1891, the plaintiff sold to Milholen mules and other personal property, and received in payment $250 in money and a note of the purchaser for the sum of $200. To secure the payment of the latter, the note and mortgage of Hodgman were deposited in a bank under an agreement by which they were to become the property of the plaintiff if the Milholen note should not be paid on or before the 6th day of the next June. It was not so paid, and this action was brought on the other note and the mortgage given to secure its payment. The answers of the defendants Hardesty and his wife deny the alleged right of plaintiff to foreclose the mortgage as against them and lot 6. The answer also contains a counterclaim, in which it is alleged that the wife is the owner of the lot, and that the mortgage is void. It asks that her title to the lot be quieted as against the plaintiff, and that his mortgage be decreed to be void. To the counterclaim a reply was filed. The district court denied the plaintiff all relief as against Hardesty and his wife, decreed the mortgage to be fraudulent, void, and of no effect, and provided for its cancellation.

1. The evidence shows that about the 1st of June, 1890, Hardesty desired to sell at least one of his lots, and was introduced by an acquaintance named Strang to Daniels. He had an office in Omaha, and was understood to be in the real-estate business. Hardesty authorized him to sell both lots for the sum of $1,400 in cash, subject to a mortgage for $300, on lot 7, which the purchaser was to assume. On the 3d day of June, Strang, acting for Daniels, told Hardesty that the money was ready for the lots. On the next day Hardesty and his wife went to Omaha, and met Daniels in his office. A deed for each lot was drawn, signed, and acknowledged. When the attention of Daniels was called to the fact that no grantee was named in either deed, he said the names would be inserted when the deeds were delivered. After they were acknowledged, Daniels and Hardesty, at the instance of the former, went to the office of one Bozzerman, on another floor of the same building, for the ostensible purpose of procuring the money which was to be paid to Hardesty. But the money was not found there, and Hardesty was told that it had been delayed by washouts, and was expected and might arrive at any time. Both Hardesty and his wife waited for a while, but, as the money was not received, Mrs. Hardesty finally returned home, telling her husband, before going, not to deliver the deeds until the money was paid. At that time the deeds were in his possession, but, after the departure of his wife, Daniels obtained possession of the deeds and an abstract of title to the lots, under the pretext of examining them, and then refused to return them, although Hardesty insisted upon having them. He was finally compelled to go home without them. Nothing was said during the transaction about Hodgman, and...