Iowa Loan & Trust Co. v. King
| Decision Date | 09 June 1882 |
| Citation | 58 Iowa 598,12 N.W. 595 |
| Parties | IOWA LOAN & TRUST CO. v. KING AND ANOTHER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Polk circuit court.
Action to foreclose a mortgage executed by W. H. King. Ellen A. King was made a defendant, and set up title in herself. W. H. King was served by publication, and failing to appear a default was entered against him. Upon a trial on the merits the petition was dismissed as to defendant Ellen A. King. Plaintiff appeals.Brown & Dudley, for appellant.
Barcroft, Gatch & McCaughan, for appellee.
1. The petition prays for the foreclosure of a mortgage executed by W. H. King, in 1875, upon a lot in the city of Des Moines, and shows that the other defendant asserts some claim and interest in the property which it is alleged is inferior and subject to plaintiff's mortgage. Ellen A. King, in her answer, avers that she is the owner of the property, and was at the time of the execution of the mortgage, and never assented thereto; that she purchased and paid for the mortgaged property, and that the deed therefor was wrongfully made to her co-defendant, W. H. King, who holds the lot in trust for her. She makes her answer a cross-bill against W. H. King, and prays that he may be required to convey the property to her, and that the title may be quieted.
2. The evidence, we think, quite satisfactorily establishes that Ellen A. King did purchase the property and pay for it mainly with her own money, or by the use of the proceeds of other property, and of the rent received from the lot itself. She positively so testifies, and her statements are supported by other evidence. There is little, if any, testimony in conflict therewith.
3. It is also satisfactorily shown that at the time, and after the mortgage was executed, Mrs. King was in the actual possession and occupancy of the property. But it is insisted that her possession was not “actual, open, exclusive, and unambiguous,” so that it would impart notice to the world of her equities. When the mortgage was executed, she, with her husband and family, was in the occupancy of the house. W. H. King is her son, and was at that time, and for some time afterwards, a member of the family as a boarder. A part of the time he lodged in his mother's house, but the preponderance of the testimony is to the effect that when the mortgage was executed he lodged elsewhere. But, however that may have been, it is clear that he did not hold the legal possession of the...
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