Hult v. Temple
| Citation | 208 N.W. 70,201 Iowa 663 |
| Decision Date | 16 March 1926 |
| Docket Number | 37214 |
| Parties | EDWIN HULT et al., Appellants, v. EDWARD TEMPLE et al., Appellees |
| Court | United States State Supreme Court of Iowa |
Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.
THIS purports to be a suit in foreclosure of a real estate mortgage. The substance of the defense was that the mortgage had been, in legal effect, paid and extinguished. There was a decree dismissing the petition, and the plaintiff appeals.-- Affirmed.
Affirmed.
Lappen & Carlson, Faa O. Ross, and Wade Clarke, for appellants.
Fred F Keithley, for appellees.
EVANS J. DE GRAFF, C. J., and ALBERT and MORLING, JJ., concur.
Though the suit, in form, is one of foreclosure, its real objective is quite beside the foreclosure mark. The plaintiff in interest is the Bond & Mortgage Company, and for the purpose of our discussion we shall treat it as the sole plaintiff. The real question presented is whether the plaintiff is entitled to recover, by foreclosure decree and sale, or otherwise, a certain alleged easement in other lands, as being appurtenant to land already acquired and owned by the plaintiff. The plaintiff is the owner of a certain tract of land described as the west 60 acres of the north half of the southeast quarter of a certain Section 25, in Polk County the same being located near the northwestern corporate limits of the city of Des Moines, and in the near vicinity of Camp Dodge. Adjoining this land on the west is a 24-acre tract described as Lot No. 23. This latter tract abuts upon the east line of Beaver Road. In this locality, Beaver Road runs northerly from Des Moines, and somewhat diagonally, bearing to the northwest. The following rough sketch will be an aid to an understanding of the locus quo:
[SEE SKETCH IN ORIGINAL]
The defendants Temple were formerly the owners both of the 60-acre tract, and of Lot No. 23. They also owned and occupied as a home, land abutting on the westerly side of Beaver Road. In March, 1918, they executed a mortgage for $ 1,000, covering the 60-acre tract, to the Iowa Loan & Trust Company. This is the mortgage which the plaintiff now seeks to foreclose. The description of the land in the mortgage contained the following clause:
"Including an easement as right of way sixteen (16) feet in width along the south side of that part of the northeast (NE) of the southwest quarter (SW)," etc.
In June, 1920, Temple sold the 60-acre tract to Herrold, and took two purchase-money mortgages for $ 3,000 and $ 1,500, respectively, thereon. These mortgages were negotiated to the plaintiff, which acquired its title to the property under foreclosure of such mortgages. These mortgages contained no reference to any right-of-way easement. The property was acquired by the plaintiff, subject to the first mortgage thereon of $ 1,000 to the Iowa Loan & Trust Company. After acquiring title, the plaintiff purchased this mortgage from the Iowa Loan & Trust Company. Temple's grantee, Herrold, "assumed" the payment of the $ 1,000 mortgage. The plaintiff did not assume payment thereof, but did take its title subject thereto. The plaintiff brought this action to foreclose the first mortgage and to obtain a personal judgment against the Temples upon the promissory note. It asks no foreclosure thereof as against the 60-acre tract. It prays foreclosure and special execution against the alleged easement alone. The conceded purpose of the proceeding is to acquire a right-of-way easement over the line "A" to "B," indicated in the plat, and to render said easement appurtenant to the 60-acre tract.
In April, 1921, Temple sold Lot No. 23 to Franks, who is now the owner of said tract. Franks is not made a party to this proceeding. Temple filed a disclaimer of all interest in the real estate over which the easement is claimed. He defends the action, as against himself, on the ground that the acquisition of the mortgage by the plaintiff, under the facts appearing, operated as an extinguishment thereof, as a matter of law, and upon the further ground that the 60-acre tract in the hands of Herrold, and in the hands of plaintiff, as Herrold's grantee, became the primary fund for the extinguishment of the first mortgage, and that the liability of Temple became secondary, and in the nature of a suretyship, and that he is entitled to have the mortgaged land applied to the payment of the debt, as a condition precedent to his liability; or that, in any event, he is entitled to be subrogated to the lien of the mortgage, in the event that he is required to pay the same.
The evidence shows that the only egress out of said 60-acre tract to the public highway was over a right-of-way easement extending to the south from its southwest corner, at Point A, to the point C, upon the highway. This right of way is 32 feet wide, and is laid upon the west line of the Litchfield tract. There never was any actual egress from said tract to the west along the south line of Lot 23. No right of way was ever opened or used along such line. Moreover, the purported right of way described in the mortgage is and was actually occupied by buildings. Moreover, it appears without dispute that the topography of the ground is such as to render travel thereon impracticable, except through expensive grading.
The foregoing constitute the salient facts from which plaintiff's rights must be ascertained. Much is said in the briefs on the subject of merger of title and mortgage lien. The question is not of controlling importance, except so far as it is incidentally involved in the remedy, if any to which plaintiff is entitled. If the mortgage in suit created an easement, in legal effect, then it was appurtenant to the real estate described in such mortgage. The plaintiff has acquired such real estate. The acquisition of the real estate carried with it every easement appurtenant thereto. See authorities collated in 19 Corpus Juris 935. In that event, it had no need of a foreclosure. The only person interested in litigating that question with it is Franks. Plaintiff has not made Franks a party to its action. Temple disclaims...
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