Manatt v. Starr

• Decision Date: 18 October 1887
• Citation: 34 N.W. 784,72 Iowa 677
• Parties: MANATT v. STARR AND ANOTHER.
• Court: Iowa Supreme Court

72 Iowa 677

34 N.W. 784

MANATT

v.STARR AND ANOTHER.

Supreme Court of Iowa.

October 18, 1887.

Appeal from district court, Washington county; J. K. JOHNSON, Judge.

Action in chancery to correct a mistake in a mortgage which shows the conveyance of a tract of land other than the one intended to be described and conveyed. The final decree denied the relief prayed for by plaintiff. The plaintiff and the Iowa State University (defendant, the mortgagee) appeal.H. & W. Scofield and C. V. Manatt, for defendant, appellant.

W. J. Haddock, for the University, appellant.

J. F. Henderson and A. H. Patterson & Sons, for appellee.

BECK, J.

1. In 1858, Robert Brown owned three 40-acre tracts of land which are so situated that they make together a tract 240 rods long and 80 rods wide, the length being east and west. The three 40's constitute a tract three 40's in length, from east to west, and one 40 broad. At that date he conveyed the east 40 to one Garver, who subsequently conveyed it to defendant Starr; and soon after this conveyance Brown executed a mortgage to the State University, to secure $400 borrowed money, conveying the west 40 and also the east 40, which had before been conveyed by him as just stated. The two 40's were subsequently conveyed separately by Brown; the west one being conveyed by his grantee to plaintiff, and the middle one to defendant Starr. Plaintiff alleges in his petition that the mortgage mistakenly describes and conveys the east 40, it being the purpose of the parties to convey the west and middle 40's, which at the time were owned by Brown, and prays that the mortgage may be corrected accordingly, and declared to be a lien upon the middle 40. The defendant Starr, in his answer, denies that there is a mistake in the mortgage, and alleges that the intention of the parties was to convey the land described in the instrument. He also claims that plaintiff's action is barred by the statute of limitations. The university, in its answer, denies the allegations of plaintiff's petition, not having any information upon the subject sufficient to authorize a belief; but alleges that at the time the mortgage was executed Brown owned all of the lands described in the mortgage, and claims a lien thereon. The treasurer of the university, who is made a defendant, admits certain payments alleged to have been made upon the principal and interest of the mortgage, and asks for the foreclosure thereof, and for general relief. Plaintiff's petition was dismissed by the final decree, and the mortgage was foreclosed upon the land described therein.

2. In our opinion, the evidence clearly establishes the mistake in the mortgage. It is proved by the direct and positive evidence of Brown and his wife, and by the further fact that Brown at the time did not own the east 40 described in the deed,--a circumstance of considerable weight tending to corroborate these witnesses. There is not one word of evidence tending to contradict them on this point. Counsel for defendant Starr insist that, as the mistake against which equity will relieve must be mutual, plaintiff cannot maintain this action, for the reason that there was no mistake upon the part of the university; that institution understanding that the lands described in the mortgage were those intended to be conveyed. In support of the fact upon which this position is based, counsel rely upon the allegations of the answer of the university, which they claim aver that there was no mistake in the mortgage. Assuming that the answer of the university is to be so understood, we are of the opinion that its allegations are not to be conclusive against plaintiff. Surely the plaintiff cannot be precluded by an answer of a defendant which pleads facts inconsistent with the claim and allegation of the petition. The university introduces no evidence in support of its answer. Defendant Starr, when he purchased the middle 40, agreed to pay the whole amount due on the mortgage, as a part of the consideration for the land. Brown and his wife testify positively and directly to this effect. Starr testifies to the...