Harrington v. Foley

• Decision Date: 10 May 1899
• Parties: HARRINGTON ET AL. v. FOLEY ET AL.
• Court: Iowa Supreme Court

108 Iowa 287

79 N.W. 64

HARRINGTON ET AL.

v.FOLEY ET AL.

Supreme Court of Iowa.

May 10, 1899.

Appeal from district court, Woodbury county; William Hutchinson, Judge.

Suit in equity to quiet title, for an injunction, and the appointment of a receiver, for an accounting, and other equitable relief. Defendants claim that plaintiff's title to the real estate is held as security for money advanced, and is in fact a mortgage; deny that plaintiff has any interest in the crops raised upon the premises; and ask judgment for damages. A receiver was appointed, who took possession of the real estate, harvested the crops, and sold them under orders of court. The trial court found that plaintiff held title to the land as security for the payment of $4,000; that defendants were entitled to the crops taken by the receiver, and were further entitled to damages by the receivership; dissolved the injunction which had theretofore been granted; discharged the receiver; and taxed up all the costs and expenses of the receivership to plaintiff. A judgment was also rendered against Rosanna C. Foley for the amount of the loan, with interest, and special execution was ordered for the sale of the property, thus giving defendants the statutory period of redemption. Plaintiff and the receiver appeal. Modified.Charles A. Dickson, for appellants.

Kennedy, Jackson & Kennedy, for appellees Rosanna C. Foley and John C. Foley.

C. W. Taylor, for appellee Elizabeth C. Foley.

DEEMER, J.

Rosanna Foley and John C Foley were for many years prior to the time this controversy arose the owners of the subject of the litigation,--a farm of about 300 acres, situated in Woodbury county, Iowa. They mortgaged the same to one Ormsby, trustee, to secure the sum of $4,175. This mortgage matured June 1, 1892. At about the time this mortgage matured, one Burd, who was Mrs. Foley's attorney, induced her to make a new loan of the Security Company of Hartford, Conn., for the avowed purpose of taking up the Ormsby mortgage. Burd received the money advanced by the Security Company, and afterwards absconded, without paying the Ormsby mortgage. The holder of the Ormsby mortgage was threatening foreclosure, and Mrs. Foley, anxious to defeat the Security Company, consulted another attorney, who advised her that the Ormsby mortgage should be secured by some one who was friendly to her, and a foreclosure made in such manner as to practically defeat the Security Company's mortgage. Acting upon this suggestion, Elizabeth Foley, a daughter of Rosanna, induced the plaintiff to furnish $4,000, which, with $662.18, to be furnished by the Foleys, would procure the Ormsby mortgage. At that time a contract was drawn up between the parties, which reads as follows: “Whereas, an assignment has been made by R. S. Ormsby, trustee, and W. T. Tilford, beneficiary, of a certain mortgage executed by Rosanna Foley and John C. Foley, wife and husband, covering certain lands therein described, in Woodbury county, Iowa, which mortgage is recorded in Book 43 of Mortgages, page 285, in Woodbury County Records, to Albert Harrington, for the sum of four thousand six hundred sixty-two and 18/100 ($4,662.18) dollars; and whereas, the mortgage bond covered by said mortgage has also been transferred to said Harrington; and whereas, Elizabeth C. Foley has, in fact, furnished some of the said money: This memorandum is made as evidence of the respective rights of said Harrington and said Elizabeth C. Foley, viz.: (1) Of the moneys so furnished as aforesaid the said Harrington has furnished four thousand ($4,000) dollars, and the said Elizabeth C. Foley the sum of six hundred sixty-two and 18/100 ($662.18) dollars; that being the amount due upon the said bond and mortgage to the first day of February, 1895. (2) That said Harrington is to foreclose the said bond and mortgage, and has employed Chase & Dixon as attorneys for such foreclosure, and said foreclosure shall be had without expense to said Harrington. (3) For the four thousand ($4,000) dollars paid by said Harrington he is to have back the principal and interest thereon at the rate of 8 per cent. per annum on or before one year from date, and upon payment of that sum he will assign the said bond and mortgage, or the judgment into which they may be merged, or the certificate of sale which he may have taken, as may be necessary, upon the payment to him of the said amount, and the said Elizabeth C. Foley is to have all excess of the amount received upon the said foreclosure. In case the premises should have been redeemed by the second mortgagee, or other party, the redemption money shall be proportioned as aforesaid. The said Harrington shall receive four thousand ($4,000) dollars, with interest on said sum at 8 per cent. (8 per cent.) per annum to the time of such redemption, and the said Elizabeth C. Foley shall receive all moneys in excess of such amount. The above-named parties have signed the memorandum this 2nd day of February, 1895. Albert Harrington. Elizabeth C. Foley.” The money thus procured was paid to the holder of the Ormsby mortgage, and the note which it was given to secure, as well as the mortgage itself, was assigned to plaintiff Harrington. Shortly thereafter two actions were commenced by Messrs. Chase and Dickson, who were attorneys for Mrs. Foley, one to foreclose the Ormsby mortgage, and the other to set aside the mortgage given to the Security Company. The foreclosure suit went to judgment on March 22, 1895, and the property was sold to plaintiff Harrington under special execution April 23, 1895. After the sale, and before the equity of redemption had expired, the Security Company, which was made a party to the foreclosure suit, and served with notice by publication, appeared, and filed a pleading, in which it claimed that its mortgage was superior to that of the Ormsby mortgage. Thus matters stood until February 8, 1897, when a stipulation was entered into by the terms of which the Security Company withdrew its answer and disclaimed any interest in the premises in controversy. All litigation with reference to the mortgages being thus closed, plaintiff Harrington, on the 11th day of February, 1897, took a sheriff's deed to the property. The Foleys made an effort to secure money with which to repurchase the land, or to repay plaintiff the amount of his investment, but, failing in this, plaintiff, on September 20, 1897, commenced this suit, in which he claimed to be the absolute owner of the property; that defendants were committing waste, and destroying the property, were making claim to the crops growing thereon, and otherwise injuring his estate. The defendants, as we have seen, deny the plaintiff's ownership, plead that he holds the title only as security for the repayment of the $4,000 advanced, and they also ask for damages done their property by the receivership.

It will thus be seen that the primary question for solution is, how does plaintiff hold the title acquired under the sheriff's deed? The evidence leaves no doubt in our minds that plaintiff, at the instance of Elizabeth C. Foley, who was at all times acting for her mother, Rosanna Foley, advanced $4,000 to assist in procuring an assignment of the Ormsby mortgage, to the end that...