Haggerty v. Brower
| Decision Date | 13 May 1898 |
| Citation | 75 N.W. 321,105 Iowa 395 |
| Parties | DAVID HAGGERTY, et ux., Appellant, v. GEORGE L. BROWER, et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Pocahontas District Court.--HON. LOT THOMAS, Judge.
PLAINTIFF seeks in this action to have a deed executed by himself and wife to defendant declared a mortgage. Defendant filed a cross bill, making plaintiff's wife also a defendant therein, and prayed that he be decreed the absolute owner of the real estate in question, and that his title thereto be quieted. Plaintiff's wife, by pleading filed, sets up a right of homestead. There was a trial to the court, and a decree in defendant's favor. Plaintiff and his wife appeal.
Reversed.
Geo Heald and Frank Farrell for appellants.
Stevenson & Lavender for appellee.
Plaintiff owned and resided upon a farm of two hundred and forty acres in Pocahontas county, this state. He was considerably embarrassed financially, and desiring to make a loan on his farm, in order to obtain time in which to pay what he was owing, he sent for defendant, who was a loan broker, and whose assistance he desired in arranging his affairs. In response to the call, defendant went to plaintiff's residence. After some talk it was found that plaintiff needed about three thousand, six hundred dollars to clear up his outstanding indebtedness. This was more than defendant thought the land would bear. Defendant was not loaning his own money, but was procuring funds for farm loans from others. After some talk, it was agreed that plaintiff and his wife should make a mortgage for three thousand dollars to one Kiene, a second mortgage for six hundred dollars to defendant, a chattel mortgage (also to defendant) to further secure the said six hundred dollars, and also give the deed in question. These instruments were all executed and delivered. Defendant procured the money, and paid off the indebtedness of plaintiff, which amounted to something more than three thousand, six hundred dollars. Plaintiff thereafter gave his note to defendant for the excess. The facts so far stated are not in dispute. The contention arises on the question of how it came that the deed was given defendant. Plaintiff's claim is that the deed was made only as additional security for the loan, while defendant insists that it was an absolute sale. He admits that he gave plaintiff one year in which to repurchase the premises, but says that the right to take advantage of this was lost by a failure to exercise it within the time given, and therefore he is now the unqualified owner of said land. The transactions spoken of took place in March, 1890; and in March, 1891, plaintiff leased the land from defendant at an annual rental of three hundred and ninety dollars. Leases were also taken by plaintiff for the years 1892 and 1893 respectively.
II. We will first consider the testimony relating to the deed: To establish its character as a mortgage, the evidence must be clear, satisfactory, and convincing. The fact that plaintiff leased the premises of defendant tends to show that the latter was the owner, but it is not conclusive. Rogers v. Davis, 91 Iowa 730, 59 N.W. 265. Plaintiff was an ignorant man, unable either to read or write; and he claims that he took the lease under a misapprehension of his rights caused by statements of defendant. On the other hand, we think the testimony of defendant, alone, is sufficient to show that he took the title to this property only as security for the money advanced. He testifies that he called upon plaintiff to make him a loan. No other purpose was contemplated by either party. And he says that when he ascertained the amount of plaintiff's indebtedness, a part of which was secured by mortgage on the land, he at first declined to make the loan. He told plaintiff to let the mortgagee foreclose. Repeating his words, "I said to him, 'Your land will be well enough sold if they foreclose, and you will have a year's possession.'" But he says further that plaintiff did not wish to have a foreclosure, and insisted that defendant take a deed for the land, and pay the debts, and give plaintiff one year's time in which to re-purchase. Inasmuch as plaintiff was getting nothing for himself out of the land, in the sale to defendant, it seems somewhat strange that he should be solicitous for that method of paying his debts, rather than through foreclosure proceedings. But another circumstance admitted by defendant seems conclusive of the character of this transaction. At the time he took the two mortgages on the land, and the deed, he took also from plaintiff and his wife a chattel mortgage on four horses and eight cows, to secure a note of six hundred dollars, payable to defendant's order, and which note had upon it a pencil memorandum that it was collateral security for the real estate mortgage of six hundred dollars. If this deed canceled plaintiff's indebtedness, as claimed by defendant, why was the chattel mortgage taken? Nor can we understand why the two real estate mortgages were executed, if the lands were sold to defendant. The six hundred dollar mortgage was made to defendant, and, as part of the same transaction, he claims the land was sold to him. The three thousand dollar mortgage was made to one Kiene. Defendant did not assume its payment, in the deed, nor even take the land subject to it. Plaintiff is still liable on the three thousand dollar note. According to defendant, plaintiff gave him the land in consideration of the payment of his indebtedness, and yet continued liable, and is to-day, for three thousand dollars of the amount. There is no reasonable explanation of these facts on defendant's theory that the deed was an absolute conveyance. The plaintiff testifies most positively that the deed was given only as security. He is corroborated by members of his family. This evidence, taken in connection with the circumstances to which we have just called attention, settles the question in plaintiff's favor.
III. But defendant claims that, if the deed is held to be a mortgage, the fact will not avail plaintiff, because he has surrendered his right to redeem. It seems that in October 1891, which was after plaintiff leased the premises, the defendant delivered, and plaintiff accepted, the note for six hundred dollars, secured by the second mortgage, and the note for the excess over three thousand, six hundred dollars paid by defendant. It is not clear from the abstract, but we may assume that the note secured by the chattel mortgage was also surrendered. It is difficult to get at some of the facts...
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...permit. But, as fully sustaining the view we have above expressed, see Russell v. Southard, 12 HOW 139 (13 L.Ed. 927); Haggerty v. Brower, 105 Iowa 395, 75 N.W. 321; Morris v. Nixon, 1 HOW 118 (11 L.Ed. Schierl v. Newburg, 102 Wis. 552 (78 N.W. 761); Carveth v. Winegar, 133 Mich. 34 (94 N.W......
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