Keyes v. Mann
| Decision Date | 03 June 1884 |
| Parties | KEYES, GUARDIAN, v. MANN ET AL |
| Court | Iowa Supreme Court |
Appeal from Cass District Court.
THIS action was brought to obtain a judgment against the defendant, Reesman, upon a promissory note, and to foreclose a mortgage given by him to secure the same. He admits the execution of the note and mortgage, but avers that they were given for a farm purchased by him of one John Keyes, in 1871 at $ 40 per acre; that the farm was supposed to contain four hundred and thirty-five acres, but in fact contains only four hundred and eleven acres; that the note and mortgage were executed for too large an amount; that he has paid all that is really due, and more too; and asks judgment canceling the note and mortgage. There was a judgment for the plaintiff for the amount claimed, and for a foreclosure of the mortgage. The defendants appeal.
AFFIRMED.
L. L DeLano, for appellants.
Temple & Phelps, for appellee.
The plaintiff, Sophia A. Keyes, is the widow of John Keyes deceased, and guardian of her daughter, Cornia P. Keyes. The note in suit was given to Sophia A. Keyes, as such guardian for a note previously executed by the defendant, Reesman, to John Keyes. It appears that an action was brought on the original note by the administrator of John Keyes. Reesman claimed at that time that there was a shortage in the land, and he was advised that that was the proper time to set up such fact, if he intended to. He did not, however, set it up, but settled the suit by giving the note now sued on, and gained additional time. Whether he was actuated in part by the idea that his own testimony would be inadmissible in that action, but would not be in an action that might be brought upon the new note, does not appear, nor is it material. Whether we regard the defense as a plea of partial failure of consideration; or of a mistake, we have to say that we think that it cannot be sustained. Reesman went into the transaction with his eyes open. It is true, he claims that he did not know for a certainty what the quantity of the land was. But, as he made a new note to a new party, and stipulated for additional time, it was his business to know. More than five years had elapsed since the first note was given, and the matter of shortage had been brought expressly to his attention. Under the circumstances shown, it appears to us that we must regard the consideration as...
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