Heim v. Ressel

• Decision Date: 12 November 1913
• Citation: 143 N.W. 823,162 Iowa 75
• Parties: HEIM ET AL. v. RESSEL ET AL.
• Court: Iowa Supreme Court

162 Iowa 75

143 N.W. 823

HEIM ET AL.

v.RESSEL ET AL.

Supreme Court of Iowa.

Nov. 12, 1913.

Appeal from District Court, Allamakee County; L. E. Fellows, Judge.

Suit in equity to foreclose an instrument in the nature of a mortgage, made by defendants, husband and wife, to Nicholas Meyer, and by him indorsed to plaintiffs. Defendants filed separate answers. Gustaf Ressel denied any indebtedness to plaintiff, and denied that the instrument sued on contained any promise to pay; averred that it was made to secure a written instrument containing a promise to pay, and that this indebtedness had been fully paid. The wife made practically the same answer, and also alleged that she signed no obligation to pay either Meyer or to plaintiffs any sum whatever. Both defendants afterwards pleaded full payment of all indebtedness to the plaintiffs, alleging that the last payment was made on May 2, 1905. Thereafter plaintiffs filed an amendment to their petition, which their counsel say, in an amendment to the abstract, should be disregarded. Upon issues, which are somewhat confused, the case was tried to the court, resulting in a judgment for the plaintiffs in the sum of $268 and costs, and decreeing a foreclosure of the mortgage. Defendants appeal. Reversed and remanded.William S. Hart, for appellants.

DEEMER, J.

[1] Unfortunately the record is in a very confused state, and appellees' counsel have not seen fit to make any argument, although they have filed two amendments to the abstract, which have tended to confuse rather than clarify. The suit seems to be upon the following instrument:

“Know all men by these presents, that Gustaf Ressel and his wife, Augusta Ressel, of the county of Allamakee and state of Iowa, in consideration of the sum of ($315.00) three hundred and fifteen dollars, in hand paid by Nicholas Myer, in the county of Allamakee and state of Iowa, do hereby sell and convey unto the said Nicholas Myer and to his heirs and assigns, the following described premises, to wit: The north half of the northeast quarter of section eighteen (18), township ninety-six (96), range three (3) west of the 5th P. M., containing eighty acres more or less.

The intention being to convey hereby an absolute title in fee, including all rights of homestead to have and to hold the premises above described with all appurtenances thereto belonging unto the said Nicholas Meyer or his heirs, executors, or administrators to be void upon a condition that the said Gustaf Ressel and his wife, Augusta Ressel, pay to said Nicholas Meyer or his heirs three hundred and fifteen dollars, in the sums and at the times herein specified, to wit: One hundred dollars to be paid November 15, A. D. 1897, interest 8 per cent. One hundred and fifteen dollars to be paid November 15, A. D. 1898, interest 8 per cent. One hundred dollars to be paid November 15, A. D. 1899, interest 8 per cent.

Signed the 3d day of December, A. D. 1896, Gustaf Ressel. Augusta Ressel. In presence of John J. Broderick.

State of Iowa, Allamakee County--ss.”

This instrument was duly acknowledged, and upon the back thereof was the following indorsement: “Pay to the order of Peter and Frank Heim. Nicholas Meyer.”

An action between these same parties evidently involving some collateral matter reached this court some years ago, and was decided in an opinion which is reported in 133 N. W. 883. That case seemed to be to recover an alleged loan of $100 made by Peter and Frank Heim to defendants on or about May 2, 1905. It seems that the alleged loan was made at the time that the present defendants claim to have paid the indebtedness sued on in this case. The opinion just referred to was in review of a petition for a new trial by the plaintiffs therein of an action in which the jury returned a verdict for the defendants. Plaintiffs' theory of the present case as presented by the petition is not only that the instrument set out contained a direct promise to pay, but that (and we here quote from the petition):

“Par. 4. The indorsement set out in paragraph 2 upon the back of said instrument was placed thereupon by Nicholas Meyer on or about the 12th day of August, 1902, at which time the said Nicholas Meyer sold, assigned, and transferred the indebtedness evidenced by the said instrument in writing by writing the indorsement upon the back of said instrument, and by delivering the said instrument to the plaintiffs, that became and has ever since been their property, and the indebtedness evidenced and secured thereby became and has ever since and is now their property.”

“Par. 6. The plaintiffs admit that the interest has been paid in full to December 3, 1901, and that the item of $115, due November 15, 1898, has been paid in full, and that the defendants have paid to apply on the interest since this indebtedness became the property of plaintiffs $24, and no more.”

The prayer was for judgment for the amount of the indebtedness “set out herein,” with a decree for the foreclosure of the instrument as a mortgage.

Because of a dispute in the record, we have been compelled to go to the transcript in order to discover just what the trial was about. As we understand it, plaintiffs claim that the mortgage or deed in suit was given to Meyer, the grantee therein, to secure the sum of $315, borrowed from him at about the time the instrument bears date; the indebtedness being evidenced by three notes, the last maturing some time in the year 1899. Some time in the year 1898, or perhaps a little later, a threshing machine company obtained judgment against the defendant Gus Ressel for the sum of $325. All of the interest on the mortgage indebtedness down to some time in August of the year 1902, with $115 of the principal, was paid to Meyer, the mortgagee. Desiring the balance of the principal, he pressed defendants for payment, and it is claimed that Mrs. Ressel (her husband then being away from home) went to the...