Grimes v. Kelloway

• Court: Iowa Supreme Court
• Writing for the Court: KINDIG
• Citation: Grimes v. Kelloway, 204 Iowa 1220, 216 N.W. 953 (Iowa 1927)
• Decision Date: 17 December 1927
• Docket Number: No. 38351.,38351.
• Parties: GRIMES ET AL. v. KELLOWAY ET AL.

204 Iowa 1220

216 N.W. 953

GRIMES ET AL.

v.KELLOWAY ET AL.

No. 38351.

Supreme Court of Iowa.

Dec. 17, 1927.

Appeal from District Court, Greene County; J. A. Henderson, Judge.

Action to foreclose a mortgage, aided by attachment and receivership proceedings. Relief was granted, and appellant, Irving, appeals therefrom. Affirmed.J. F. Gallup, of Jefferson, for appellant Irving.

Guy C. Richardson, of Jefferson, for appellees Taylor Grimes, L. M. Grimes, and Bartholomew.

Graham & Osborn, of Jefferson, for Smith.

Wilson & Harris, of Jefferson, for Jabez Keys and Katie Keys.

Howard & Sayers, of Jefferson, for Cudahy and Tiffany.

KINDIG, J.

A review of the historical facts is first important. On the 28th day of February, 1920, defendants Roy W. Kelloway and Otis A. Kelloway made and delivered to the defendant Robert Smith a certain promissory note for the sum of $12,000, bearing interest from March 1, 1920, at the rate of 5 per cent. per annum, due March 1, 1925. To secure the payment of the negotiable instrument, the makers thereof, as grantors, executed a mortgage on certain real estate in Greene county, containing approximately 52 1/2 acres. About the 21st day of July, 1921, Robert Smith transferred the written promise to pay, by indorsement in blank, to L. B. Bartholomew, Taylor Grimes, and L. M. Grimes, plaintiffs and appellees, and at the same time, in writing, assigned to them the “mortgage.” Afterwards, on March 31, 1920, the Kelloways conveyed the burdened farm by deed to Jabez A. Keys and Katie Keys, wherein the grantees assumed and agreed to pay the incumbrance. Then the Keys, who were husband and wife, sold the premises involved to F. P. Cudahy and Frank Tiffany, defendants and appellees, and in the deed accepted these grantees also “assumed and agreed to pay” the indebtedness. Finally, on April 7, 1923, Cudahy and Tiffany disposed of the acreage to John W. Irving, defendant and appellant. In that instrument of conveyance also the grantee “assumed and agreed to pay the mortgage.” Contained in the original security agreement is the following:

“It is also agreed that, in case of default in any respect so that this mortgage can be foreclosed, the rents and profits of said premises, as well before as after sale on execution, are hereby pledged to the payment of the moneys secured hereby, and that on the commencement of an action to foreclose this mortgage, the plaintiff therein shall be entitled to the appointment of a receiver with the usual powers to take and hold such rents and profits for the benefit of the plaintiff, and subject to the order of the court.”

There was “default,” and on March 19, 1925, this suit was instituted to procure judgment against Roy W. Kelloway, Otis A. Kelloway, Robert Smith, Jabez A. Keys, Katie Keys, F. P. Cudahy, Frank Tiffany, and John W. Irving, the foreclosure of the “mortgage,” and the “appointment of a receiver.” Supplemental to this, on April 14, 1925, the appellees, by amendment, asked for the issuance of a writ of attachment. Trial was had and personal “judgment” was granted against John W. Irving, F. P. Cudahy, Frank Tiffany, Roy W. Kelloway, Otis A. Kelloway, and Robert Smith, the “mortgage” foreclosed, the temporary “receivership” made permanent, and the adjudicated amount made a lien upon appellant's separate land previously levied upon under the “writ of attachment.”

The errors relied upon for reversal will now be considered.

[1] I. Appellant complains that he should not be held because he did not undertake the fulfillment of said legal obligation to be discharged by others. With this contention we are constrained to disagree. In the compact whereby appellant procured the right to obtain the premises, there appears, in reference to the liability in question, the following language:

“One first mortgage of $12,000.00 to Robert Smith, due March 1, 1925, which grantee assumes and agrees to pay, with interest from March 1, 1923.”

And accordingly, in the resulting “deed” from Cudahy and Tiffany, there is the sentence:

“Except a first mortgage of $12,000.00 to Robert Smith, due March 1, 1925, * * * which grantee assumes and agrees to pay, with interest from March 1, 1923.”

Those stipulations make appellant the principal debtor as between the maker and subsequent assumers of the “obligation.” Boice v. Coffeen, 158 Iowa, 705, 138 N. W. 857;Bennett Savings Bank v. Smith, 171 Iowa, 405, 152 N. W. 717;Beeson v. Green, 103 Iowa, 406, 72 N. W. 555. Beeson v. Green, supra, declares:

“That the deed was accepted is not questioned, nor could it be, under such circumstances. The defendants had made all the use of the instrument for which it was designed. It had served the purpose of transferring title. * * * They insist, however, * * * that they never agreed to pay the mortgage. But the agreement to pay is in writing. By accepting the deed they obligated themselves as effectually as though they had signed it.”

II. Argument is sought to be predicated upon the proposition that the “assumption and agreement to pay” was personal to Tiffany and Cudahy, and not for the benefit of the holder of the “mortgage,” because of the peculiar language contained in the “deed”; that is to say, immediately succeeding the description of the real property is inserted the clause in question, and it is insisted that, as thus constructed, the purport of the text is not to exclude the “mortgage” from the warranty against “incumbrance,” but rather amounts to a reduction of the real estate itself to the extent of the “mortgage.”

This claim is not well-founded. Returning to the “contract of purchase,” it will be discovered there is no ambiguity, but, on the other hand, the intention is there very plain and clear that appellant was to “assume and pay” the amount of the “mortgage” to whomever it may be due. Moreover, a study of the entire “deed” will convince beyond a peradventure of a doubt that its provisions under criticism are in harmony with said “agreement,” and when correctly interpreted mean that Cudahy and Tiffany did not “warrant” the title against the “mortgage,” and that appellant “assumed and agreed to pay” the same.

[2] III. Directed against the procedure relating to the attachment is a demand for reversal, because jurisdiction is lacking. Insistence on the absence thereof is based: First, upon the insufficiency of the grounds for “attachment”; and, second, the misjoinder of it with other remedies in this “foreclosure” proceeding. It is not necessary to pass upon this phase of the controversy, because the subject now...