Jurgensen v. Carlsen
| Decision Date | 10 April 1896 |
| Citation | 66 N.W. 877,97 Iowa 627 |
| Parties | BENEDIX JURGENSEN v. JULIUS CARLSEN, et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Clinton District Court.--HON. W. F. BRANNAN, Judge.
SUIT in equity to foreclose a mortgage given by defendants to plaintiff. The defendants pleaded a mistake in the note and mortgage, asked that the same be corrected to conform to the understanding of the parties, and that the suit be abated. Decree for plaintiff, and defendants appeal.
Affirmed.
McCoy Bros. and Wm. Kreim for appellants.
Walliker Bros. for appellee.
The suit is predicated upon a note for the sum of four thousand dollars, made and executed by the defendant, Julius Carlsen on the nineteenth day of June, 1893, and a mortgage upon certain real estate, made and executed on the same day, by Julius Carlsen and Gude Carlsen, his wife, to secure the payment of said note. It is provided in the note, that a failure to pay any of the interest thereon, within three days after due, shall, at the option of the holder, cause the whole of the note to become due and collectible at once. The mortgage contains a similar, although somewhat stronger provision, in that, it provides that a failure to pay either principal or interest, within three days after it becomes due, shall cause the whole sum secured by the mortgage to become due and collectible at once, and further provides that the mortgage may thereupon be foreclosed for the whole of said money, interest, and costs. The note, as we have said, is dated June 19, 1893, and draws interest, payable annually, at the rate of seven per cent. from date, until paid; the principal sum is made payable in installments of one thousand dollars each, on the fifteenth day of September of each year following, and including the year 1894. The mortgage also provides that the mortgagors shall pay interest annually, at the rate of seven per cent., from and after its date, upon the principal sum secured. This suit was commenced on the twenty-sixth day of June, 1894, and it is alleged in the petition that defendants neglected to pay the interest maturing June 19, 1894, for more than three days after the same became due. The defendants, in answer, claim that a mistake was made by the scrivener in drawing up the notes and mortgage; that it was the understanding and agreement between the parties that the interest should be paid at the same time that the installments of principal matured to-wit, on the fifteenth day of September, in each year; and they ask that the notes and mortgage be reformed to express the true agreement of the parties, and that the suit be abated. They further pleaded an arrangement between the parties, by the terms of which the plaintiff agreed that he would receive, and defendants agreed to pay, the whole of the amount of principal and interest within a few days after the maturity of the interest; and they say that, relying thereon, they proceeded to arrange for and procure the sum needed to meet their obligation, but that plaintiff, in violation of his agreement, commenced this suit; and they claim that plaintiff is now estopped from prosecuting the action. The plaintiff...
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