Head v. Newcomb

• Decision Date: 08 October 1892
• Citation: Head v. Newcomb, 89 Iowa 728, 53 N.W. 118 (Iowa 1892)
• Parties: HEAD ET AL. v. NEWCOMB ET AL.
• Court: Iowa Supreme Court

89 Iowa 728

53 N.W. 118

HEAD ET AL.

v.NEWCOMB ET AL.

Supreme Court of Iowa.

Oct. 8, 1892.

Appeal from district court, Green county; J. H. MACOMBER, Judge.

Action in equity in two counts for the foreclosure of two separate mortgages on real estate, executed by Sarah A. Newcomb by her then name of Sarah A. Foley, to secure her certain promissory notes. No defense is made against the first mortgage; therefore it will not be further noticed. Defendants Caughlin and Boyd, judgment creditors of Sarah A. Newcomb, defend, and allege that said second mortgage, and note secured thereby, were given without consideration, and with intent to defraud these defendants as such creditors. Plaintiffs in reply admitted that judgments were rendered against Sarah A. Newcomb in favor of defendants, and alleged that they were paid and fully satisfied of record on the 1st day of June, 1889; that they were reinstated May 1, 1890, without notice to plaintiffs. They deny that said note and mortgage are without consideration, or that they were given with intent to defraud defendants. Decree was entered in favor of plaintiffs upon both mortgages. Defendants Caughlin and Boyd appeal.J. A. Gallaher, for appellants.

Head & Smith, for appellees.

GIVEN, J.

1. Appellants contend that, as the note and mortgage in question were assigned to appellees after due, they hold the same subject to any defense which might be made if suit were brought by the indorser, and that as said note and mortgage were given without consideration, and to defraud appellants as judgment creditors of Sarah A. Newcomb, appellees are not entitled to recover thereon. Appellees concede the general rule to be as stated, but contend that under the facts appellants are estopped, by reason of their laches, from maintaining said defense as against appellees. The facts as shown by the evidence are these: Appellants each obtained judgment in the district court against John Foley as principal, and Elizabeth A. Foley as surety, November 27, 1886. On June 1, 1889, execution upon each judgment was returned “Satisfied in full by the sale of land levied upon.” The court records thus stood until the following entry was made: “Appearance No. 2,043. Sarah A. Newcomb against J. H. Black, sheriff, Alexander Boyd, and Edward Caughlin. Defendants appeared by J. A. Gallaher, their Atty. Plaintiff appeared by J. D. Howard, her attorney. And now, to wit, on this 1st day of May, A. D. 1890, this case comes on to be heard on the motion of Boyd and Caughlin, to correct the decree herein, and reinstate their judgment against the plaintiff; and the court, being fully advised, finds that the original judgment against plaintiff, and in favor of said defendants Boyd and Caughlin, was satisfied and canceled by the application of the proceeds of land that this plaintiff owned, and by authority of executions issued therefor. That afterwards, that is to say, after February, 1890, term of this court in this action, said levy and sale were set aside and held to be naught by the court, as said land so sold was held to be the homestead of this plaintiff, and exempt from execution. Therefore said motion is sustained, and this order adjudged, and decree by the court that the said original judgments be, and they are hereby, reinstated, and the clerk of this court is directed to enter upon judgment docket against said judgments the fact that they are now reinstated, and are now in...