Patterson v. Mills

• Decision Date: 23 April 1886
• Citation: 28 N.W. 53,69 Iowa 755
• Parties: PATTERSON, GUARDIAN, ETC., v. MILLS.
• Court: Iowa Supreme Court

69 Iowa 755

28 N.W. 53

PATTERSON, GUARDIAN, ETC.,

v.MILLS.

Supreme Court of Iowa.

April 23, 1886.

Appeal from Hamilton district court.

Action in chancery to foreclose a mortgage. Upon a trial on the merits there was a decree for defendant. Plaintiff appeals.Wesley Martin, with C. T. Collier, for appellant.

W. J. Covil, for appellee.

BECK, J.

1. The facts disclosed by the evidence, as we find them, are these: In December, 1875, Samuel Mills executed a mortgage to Nathaniel Green, conveying a quarter section of land in Webster county to secure the payment of $2,600. The mortgage was filed for record May 26, 1876. June 21, 1883, Green assigned and transferred the mortgage to the plaintiff as the guardian of Clement E. Mills, the son of Samuel Mills, who died before this assignment. The mortgage was executed under the following circumstances, and for the purposes hereafter stated: Samuel Mills had been divorced from his wife, the mother of his son, Clement, and she had been allowed $1,000 alimony to be paid by him. It was the desire of both that the sum set apart to her as alimony should go to their son. In pursuance of such intention, and for the purpose of securing to the son the $1,000 alimony allowed to the mother, and a further sum to be advanced by the father, he executed the mortgage in suit to Green, with the express oral agreement and understanding that, at the death of the father, the mortgage should be transferred to the son. After the death of the father, Green transferred and assigned the mortgage to plaintiff as guardian of the son, Clement. Subsequently to the execution of the mortgage, Samuel Mills intermarried with defendant, and afterwards, in consideration of $3,200 paid by her, he conveyed the land by quitclaim deed to his second wife, the defendant. There were two mortgages of $400 each upon the land when Samuel Mills acquired title thereto, which were executed by those under whom he acquired title. These were assigned to defendant about the time of the death of Samuel, she paying the mortgagees the amount due on the mortgages. The defendant in her answer and cross-bill, by way of defense, alleges that the mortgage was given without consideration; that it was delivered to Green with the understanding that it should be surrendered and discharged of record upon the request of the mortgagor; that it was only held in trust for him; and that no note or other writing for the amount secured by the mortgage was executed by Mills. Defendant prays that the mortgage be canceled and set aside, but if this is not done the other mortgages be foreclosed, and enforced as prior liens upon the land.

2. The mortgage executed by Mills to Green upon its face is evidence of an indebtedness from the mortgagor to the mortgagee. It imports a consideration. But the evidence shows an actual and lawful consideration of $1,000, the amount awarded as alimony to Clement's mother, which, under the arrangement of the father and mother, was to go to the son; and it is further shown by the evidence that the balance of the consideration, $1,600, was an amount which the mortgagor secured by the mortgage as an advancement to his son. But an advancement by a parent to a child is a good consideration, and will support a contract or conveyance, except as against other children, and against creditors and subsequent purchasers without notice. See Holland v. Hensley, 4 Iowa, 222;Mercer v. Mercer, 29 Iowa, 557;Cecil v. Beaver, 28 Iowa, 242.

3. Defendant's counsel insists that the mortgage to Green, with the agreement that he should assign it to the son, created an express trust; and that, as this trust is not evidenced by writing, it must fail under our statute of frauds. This statute (Code, § 1934) provides that “declarations or creations of trusts or powers in relation to real estate must be executed in the same manner as deeds of conveyance, but this provision does not apply to trusts resulting from the operation or construction of law.” Let us inquire what is the subject of the trust in question. Mills made himself a debtor to Green by the mortgage. It is obvious that this debt secured by the mortgage, and not the land mortgaged, was the subject of the trust. Green was to assign the mortgage, upon the death of Mills, to the son of the latter. That assignment was intended to...