Potter v. Ft. Madison Loan & Trust Bldg. Ass'n
| Decision Date | 14 February 1907 |
| Citation | 110 N.W. 616,133 Iowa 367 |
| Parties | STEPHEN POTTER, Appellant, v. THE FORT MADISON LOAN AND TRUST BUILDING ASSOCIATION, Appellee |
| Court | Iowa Supreme Court |
Appeal from Lee District Court.-- HON. HENRY BANK, JR., Judge.
SUIT in equity to redeem certain premises from a foreclosure sale. Decree dismissing plaintiff's petition, and he appeals.-- Affirmed.
Affirmed.
John L Benbow, for appellant.
W. S Hamilton and E. C. Weber, for appellee.
W. E. Goode and her husband borrowed money of defendant, and gave a mortgage upon their property as security for the loan. Becoming delinquent in their payments this mortgage was foreclosed in the district court of Lee County, Iowa; decree being rendered February 1, 1902. To save the costs incident to a sale, it was agreed that Goode should deed the premises to the association, and pursuant thereto, a warranty deed was executed April 30, 1902. May 6, 1903, the Goodes leased the premises for one year from May 1, 1903, from the association, agreeing to pay as rental therefor, the sum of $ 10.45 per month. December 4, 1903, the Goodes executed a conveyance of the property to plaintiff herein. The deed was a quitclaim for the expressed consideration of $ 1. Some time in the year 1904 defendant brought action to eject plaintiff from the premises, and on March 22, 1904, pursuant to judgment in that case, plaintiff was evicted under writ of ejectment. March 16, 1904, plaintiff commenced this action to redeem, claiming that defendant, "on the 30th day of April, 1902, required M. E. Goode and husband to execute a deed to said real estate hereinbefore described with the understanding and agreement that the defendant would reconvey to M. E. Goode the said real estate upon the payment of the indebtedness due the defendant association, including the costs of the said proceedings; that said M. E. Goode made many payments upon said indebtedness and to apply thereon." Defendant denied this claim, and pleaded the foreclosure decree, and the judgment in the ejectment case as an adjudication and a bar to plaintiff's right to recover.
Going to the testimony, we find it established beyond question that when the original deed was made by the Goodes to defendant it was agreed that they should have the same time to redeem as if the land had been sold at sheriff's sale, and that subsequent to the execution thereof and to the expiration of the year of redemption on April 30, 1903, the Goodes paid the defendant the sum of $ 30. The lease already mentioned was made May 6, 1903, and provided for a rental of $ 10.45 per month. After the making thereof, the amount called for as rent was paid for the months of May, June, July, August, September, and a part of October of the year 1903, and in November plaintiff tendered the equivalent of another month's rent. In the latter part of the year 1903 defendant brought proceedings to eject plaintiff, and in that suit plaintiff pleaded in answer practically the same matters set up in this case, and averred that he was in possession of the property under the agreement pleaded in this case. That action was transferred to the district court, resulting in a judgment of eviction which was rendered March 12, 1904. Pursuant to a writ upon that judgment plaintiff was ejected March 21st, or 22d, of the year 1904, and has not occupied the property since that date.
This action was commenced March 16, 1904. If this were all there is in the case, there could be no doubt of the correctness of the decree of the trial court. But plaintiff contends, and introduced testimony to show, that, at or about the time of the making of the lease, it was orally agreed that the period of redemption should be extended, and that the lease was given to secure the payments to be made in redemption. The testimony offered in support of this claim is not very satisfactory. Plaintiff obtained his deed for the property December 4, 1903; and he testified that he said to one of defendant's officers, who was asking him to sign the lease, that he would not do so until he had the proper papers to show "that the place would be in my favor in case I paid off," and that he never did sign the paper. Another witness testified to hearing a conversation between an officer of the company and Mrs. Goode, in which this officer agreed that they (the Goodes) might have another year or until May 1, 1904, in which to redeem. This is denied by the officer, who said that he expressly refused to give more time within which to redeem; and in this he is corroborated by the form of the papers themselves and by the fact that plaintiff did not sign the lease, but, as he admits, expressly refused to do so. All the written evidence in the case is against plaintiff's contention, and it...
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