McCreary v. McGregor
| Decision Date | 17 May 1918 |
| Docket Number | 31961 |
| Citation | 167 N.W. 633,183 Iowa 732 |
| Parties | LUTHER MCCREARY, Appellee, v. A. W. MCGREGOR, Appellant, et al |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--MILO P. SMITH, Judge.
SUIT to foreclose a contract for the sale of real estate. Judgment and decree of foreclosure as prayed. Defendant appeals.
Affirmed.
Barnes Chamberlain & Hanzlik, for appellant.
Voris & Haas, for appellee.
Plaintiff and defendant, on December 27, 1913, entered into a contract in writing, by the terms of which plaintiff agreed to sell and convey certain real estate in the city of Cedar Rapids to the defendant, for an agreed consideration of $ 1,650 payable in installments of $ 15 or more, on the first day of each and every month. At the time of the execution of the contract, a mortgage thereon, executed by former owners thereof, was outstanding against the property. The contract between the parties hereto provided that, when appellant reduced the amount due under the contract to the face of the mortgage indebtedness, appellee would execute a warranty deed conveying the premises to him. Appellee agreed to pay the interest on the mortgage indebtedness, but, in case of default in the payment thereof, appellant was given the privilege of paying same, and receiving credit on the contract therefor. Appellant agreed to pay the taxes and keep the buildings insured and the premises in good repair. The holder of the mortgage transferred the same to W. D. McCreary, the father of appellee, and R. D. Elson, who, some time after the execution of the contract, brought suit to foreclose the mortgage. On November 7, 1914, decree of foreclosure was entered therein, and on December 11, the premises were sold at sheriff's sale upon special execution, and on September 7, 1915, appellant redeemed from said sale, paying for that purpose $ 958.70, and, at the expiration of one year from the date of the sale, a sheriff's deed was executed to him.
Some time thereafter, appellant entered into a contract in writing, by the terms of which he agreed to convey the same to the appellee William Dew. Appellant continued to make the monthly payments until he obtained the sheriff's deed, whereupon he ceased making further payments. Plaintiff then brought this suit to foreclose the contract, alleging a balance due thereon of $ 595.50, after crediting all installments and the amount paid by appellant to redeem from the sheriff's sale.
Defendant, by way of answer to plaintiff's petition, admitted the execution of the contract, the payment of the several installments and the sum paid for redemption from sheriff's sale, and averred that he redeemed therefrom as a junior lien holder; that plaintiff failed and neglected to redeem within twelve months, and that the sheriff's deed vested full title in him; that plaintiff fraudulently conspired and confederated with W. D. McCreary and R. D. Elson to obtain an assignment of the mortgage upon said premises, for the purpose of foreclosing same and depriving appellant of his interest therein; and that plaintiff fraudulently neglected to pay the interest upon the mortgage indebtedness, thereby causing the same to become immediately due; and further, that plaintiff thereby became unable to comply with his contract and convey to appellant a good title to said premises; and that, by reason of all said matters, he is relieved from further liability under said contract.
Plaintiff filed an equitable demurrer to defendant's answer, which was sustained. Defendants refusing to plead further, judgment was entered against A. W. McGregor, appellant, for $ 607.80, the balance due on said contract, with interest, after allowing credit for all installments paid and the amount paid for redemption.
Appellant does not claim that he has paid the full amount of the purchase price agreed upon, or that the judgment entered herein is not, in fact, the correct amount due, on plaintiff's theory of the case; but his contention is that, by allowing the premises to be sold under special execution at sheriff's sale, plaintiff has placed it beyond his power to comply with his contract, and convey a good title thereto; that appellant had a lien upon the premises for the amount of the several monthly installments paid by him, which entitled him to redeem, under the statute, as a lien holder, within nine months after the sale; that he did redeem, as such lien holder, and, after the expiration of the twelve months allowed to plaintiff for redemption, received a sheriff's deed to said premises, and claims title thereunder.
On the other hand, counsel for appellee argue that appellant entered into possession of the premises under his contract with appellee; that he retained possession thereof, making monthly payments in accordance therewith, until he received the sheriff's deed; that he was the equitable, or real, owner of the property, the legal title thereto being reserved in appellee as security for the payment of the balance of the purchase price; that the relation between them was, in effect, that of mortgagor and mortgagee, and that appellant could not redeem from the sheriff's sale as a lien holder, but only as owner, and that redemption by him was equivalent to, and in effect, payment; that, while in possession of the premises under the contract, he could not dispute the title of his vendor; that the payment of the judgment operated, to the amount thereof, as a payment upon the purchase price, for which appellant was entitled to, and was by the court allowed, full credit.
Considerable emphasis is placed by counsel for appellant upon the allegations of his answer charging appellee with fraudulently conspiring with his father to obtain control, and foreclosure of the mortgage for the purpose of depriving him of the monthly payments made under his contract of purchase.
It is not quite clear how appellant can be aided by this plea. By the terms of...
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