Kellogg v. Colby

• Decision Date: 19 October 1891
• Parties: C. C. KELLOGG, Appellee, v. E. E. COLBY et al., Appellants
• Court: Iowa Supreme Court

49 N.W. 1001

83 Iowa 513

C. C. KELLOGG, Appellee, v. E. E. COLBY et al., Appellants

Supreme Court of Iowa, Des Moines

October 19, 1891

Appeal from Humboldt District Court.--HON. LOT THOMAS, Judge.

BESIDES the appellant, the defendants are A. J. Parker and Estella B Fuller. The action is to foreclose a mortgage on land described as "large lot 1, in Lathrop's addition to the town of Humboldt," against H. J. Parker, as debtor and the other defendants as having an interest therein. Barring one or two other facts that we regard as unimportant the cause was submitted on the following stipulation of facts:

"It is hereby agreed and stipulated by and between all the parties to the above-entitled cause that the following is a true statement of facts, and that the same shall be used as such on the trial of said cause: First. That, on the fifth day of October, 1881, Welcome Ellis was the owner in fee simple of the premises described in plaintiff's petition and on that date mortgaged the same to one S. A. Johnson, to secure a note of the same date for two hundred and fifty dollars, with interest at nine per cent. per annum, due October 5, 1886, and that said mortgage was duly recorded on the day of its date, and that Exhibits 1 and 2, respectively hereto attached, are copies of said note and mortgage, and that no part of the same, principal or interest, was ever paid, except as hereinafter stated. Second. That, on the twenty-fourth day of February, 1882, said Ellis mortgaged said premises to the defendant, E. E. Colby, to secure the payment of a note of four hundred dollars, with interest at ten per cent., due, two hundred dollars thereof January 1 1883, and two hundred dollars thereof January 1, 1884, and that said mortgage contained a warranty against all incumbrance 'except a mortgage of two hundred and fifty dollars,' and that said mortgage to Colby was duly recorded February 27, 1882. Third. That said Ellis, on the nineteenth day of July, 1882, sold said premises by warranty deed to Estella B. Fuller for the sum of seven hundred and fifty dollars, and said deed was duly recorded on the thirty-first day of July, 1882, which deed was subject to the mortgage of two hundred and fifty dollars to S. A. Johnson aforesaid. Fourth. That said E. E. Colby sold and assigned his notes and mortgage of four hundred dollars to one Braley, who brought suit for foreclosure of the same in the circuit court of Humboldt county, Iowa, on the day of , 1883, making the plaintiff herein C. C. Kellogg, and the defendants, E. E. Colby, H. J. Parker and Estella B. Fuller and Welcome Ellis, parties defendant, and that such action was had therein that, on or about the twenty-eighth of July, 1885, judgment and decree were rendered therein in said circuit court, foreclosing said mortgage against all the defendants therein. Fifth. That, under and by virtue of said judgment and decree, said property was sold by the sheriff of said county on the sixteenth of November, 1885, and a certificate of sale issued to E. E. Colby, defendant herein, who purchased the same at said sale for the sum of six hundred and fifty dollars; and, on the seventeenth of January, 1887, the said sheriff made to E. E. Colby, who was still the holder of said certificate, his sheriff's deed of said premises, and the said deed was on the same day duly filed for record and recorded in Humboldt county. Sixth. That said judgment and decree were never reversed or set aside, and no redemption was ever made from said sale thereunder. Seventh. That, on the eleventh of September, 1882, said Estella B. Fuller sold said premises to C. C. Kellogg, the plaintiff herein, by warranty deed, subject to the aforesaid Johnson mortgage, payment of which was assumed by the grantee as part of the purchase price, which was eight hundred dollars, as recited in said deed. Eighth. That, on the eighteenth of April, 1883, said Kellogg, the plaintiff, sold said premises by full warranty deed, to the defendant, H. J. Parker. Ninth. That said deed from plaintiff herein to defendant, H. J. Parker, expressed a consideration of eight hundred dollars; that no money was paid at the time of the sale, but that defendant Parker gave to the plaintiff his several notes and mortgage for the sum of six hundred and twenty-five dollars, with eight-per-cent. interest, which are the notes and mortgage sued on herein, and the exhibits attached to plaintiff's petition are copies thereof; and that defendant Parker also conveyed to plaintiff a certain town lot, which, in the trade, was called one hundred and seventy-five dollars, but which plaintiff afterwards sold for one hundred dollars. Tenth. That the defendant, H. J. Parker, has paid to plaintiff interest upon the notes and mortgage sued on herein as follows, to-wit: April 10, 1884, he paid fifty dollars; October 10, 1884, he paid twenty-five dollars; April 10, 1885, he paid twenty-five dollars; October 10, 1885, he paid twenty-five dollars; April 10, 1886, he paid twenty-five dollars. Eleventh. That said H. J. Parker, on the fourteenth of June, 1887, sold said premises to E. E. Colby by warranty deed, copy of which is hereto attached and marked 'Exhibit 5,' and to which reference is made for the recitals and covenants therein contained. Twelfth. That the consideration expressed in said deed from Parker to Colby is eight hundred dollars, but in truth and in fact the only consideration paid, or agreed to be paid, for said conveyance was that Colby should pay the expense of making the same, and that said Colby should pay all claims and costs thereon that should be adjudged valid on account of the notes and mortgage given by said Parker to the plaintiff Kellogg, being the notes set forth in plaintiff's petition, which agreement by said Colby was in writing. Thirteenth. That the actual consideration paid by the plaintiff to the defendant. Estella B. Fuller, for the conveyance mentioned in paragraph 7 hereof was as follows, to-wit: One hundred and fifty dollars ($ 150) was paid in cash at the date of deed; three hundred and fifty dollars ($ 350) was deposited in bank by plaintiff, to be paid when all incumbrances save and except the Johnson mortgage, mentioned in paragraph 1 hereof, should be removed; and the payment of said Johnson mortgage was assumed by the plaintiff. Fourteen...