Missouri, Kansas & Texas Trust Co. v. Gantt

• Decision Date: 06 April 1895
• Citation: 62 N.W. 794,94 Iowa 480
• Parties: MISSOURI, KANSAS AND TEXAS TRUST COMPANY v. W. E. GANTT AND CARRIE E. GANTT, Appellants
• Court: Iowa Supreme Court

62 N.W. 794

94 Iowa 480

MISSOURI, KANSAS AND TEXAS TRUST COMPANY v. W. E. GANTT AND CARRIE E. GANTT, Appellants

Supreme Court of Iowa, Des Moines

April 6, 1895

Appeal from Woodbury District Court.--HON. FRANK R. GAYNOR, Judge.

Action in equity for judgment upon notes and for the foreclosure of a mortgage securing said notes. Decree for plaintiff. Defendant appeals.

Affirmed.

Gantt & Briggs for appellants.

Spaulding Taylor & Burgess for appellee.

OPINION

Kinne, J.

I.

This action was brought against defendant W. E. Gantt on nine promissory notes for six hundred and fifty-eight dollars and twenty cents each, and due, respectively, in two, three four, five, six, seven, eight, nine, and ten years after date, and all payable in monthly installments of fifty-four dollars and eighty-five cents each, bearing ten per cent interest if not paid when due. The foreclosure of a mortgage given by both defendants to secure said notes was also prayed. The mortgage covered a lot and house in Highland, an addition to the city of Sioux City, Iowa. By the terms of the mortgage it became due on a failure to make any payment. Defendant paid thirteen of the installment notes, and defaulted as to further payments. By the provisions of the mortgage, plaintiff was entitled to the rents and profits of the mortgaged premises. Judgment for six thousand dollars was prayed, with ten per cent. interest thereon from June 19 1889, and costs. The mortgage also contained the following provision: "And it is further understood and agreed by and between said parties of the first part, their executors, administrators, or assigns, and the said party of the second part, the Missouri, Kansas & Texas Trust Company, that in case said W. E. Gantt, one of the said parties of the first part, should die after the execution and delivery of said notes and this mortgage, and within ten years thereafter, each and every of said notes remaining unpaid at the said date shall be surrendered to the executors or administrators of the said W. E. Gantt, one of the said parties of the first part, and this mortgage shall be canceled and satisfied: providing, however, that said party of the first part has promptly paid each of said notes hereinbefore mentioned and maturing, and that he has not committed suicide within two years, and has not, without the written consent of the party of the second part, visited the torrid zone, or personally engaged in the business of blasting, mining, submarine operations, or in manufacturing, handling, or transportation of explosives, or entered into the service of any railroad train or on a steam or sailing vessel for two years." Defendants, for answer to plaintiff's petition, averred that the only consideration for giving the notes and mortgage was the erection by plaintiff for the defendant W. E. Gantt of a dwelling house in conformity to certain plans and specifications furnished by plaintiff; that plaintiff had failed to comply with its contract, whereby the consideration for said notes had failed; that he had paid seven hundred and thirteen dollars and five cents on the notes; that by reason of negligent and careless plumbing and failing to connect the sewer pipe from the house to the cesspool the ground became impregnated with filth, exposing def...