Ramiller v. Ramiller

• Citation: 18 N.W.2d 622,236 Iowa 323
• Decision Date: 08 May 1945
• Docket Number: 46660.
• Parties: RAMILLER et al. v. RAMILLER et al.
• Court: United States State Supreme Court of Iowa

18 N.W.2d 622

236 Iowa 323

RAMILLER et al. v. RAMILLER et al.

No. 46660.

Supreme Court of Iowa

May 8, 1945

Clark, Pryor, Hale & Plock, of Burlington, and Dickinson & Dickinson, of Des Moines, for appellant.

Dailey & Dailey, of Burlington, for plaintiffs-appellees.

Ben P. Poor, of Burlington, for defendant-appellee.

BLISS Justice.

The pleadings are of considerable length, but, because of our conclusions and decision, reference to much of them may be omitted. There is no controversy between the plaintiffs and the defendant widow. The petition alleged that Weinrich claimed some right in the land because of his mortgage thereon and promissory note secured by it, both executed by Edward W. Ramiller deceased, and his wife, the defendant, Emma Ramiller, but it is also alleged that plaintiffs believe the note was paid by decedent, and, if it was not paid, action to recover thereon is barred by the statute of limitations, and suit to foreclose the mortgage cannot be maintained because of statutory prohibition. It is alleged in the petition that the several owners are unable to agree upon a division of the land. Defendant, Weinrich, in his answer and cross-petition admitted the respective shares of the heirs and the widow and their inability to agree upon a partition, but alleged that their ownership was subject to his mortgage. He denied that the note was fully paid, and alleged that on and after March 15, 1938, Edward W. Ramiller had admitted in writing the existence of the said indebtedness which writings were set out in his pleading. He alleged that, after crediting all payments, there was due him the sum of $29,980 with interest from March 7, 1942. In addition to foreclosure of the mortgage and receivership, Weinrich, in an amendment, prayed that an equitable lien in the above amount be established on the land, superior to the interests of the other parties. Plaintiffs and the defendant widow each filed a reply to Weinrich's answer and an answer to his cross-petition. They denied specifically all of the allegations in Weinrich's pleading, and denied that he was entitled to any of the relief prayed for. They alleged that recovery on the indebtedness was barred by the statute of limitations as provided in section 11007, paragraph 6, of the code of 1939, and that there was no revivor of the indebtedness as provided in section 11018 of said code, and that the suit to foreclose the mortgage was barred by section 11028 thereof. The widow alleged that the land was owned by her husband, and that she was but an accommodation signer of the note sued upon. She also denied any knowledge of, or that she was a party to or a signer of any of the alleged letters by which Weinrich alleged the indebtedness was revived. Weinrich was a witness for himself, and also introduced as exhibits the contract by which he sold the farm to Ramiller with the payments indorsed thereon, the deed, the note and mortgage, the assignment of the mortgage to him by the original mortgagee, an extension of the maturity of the note, and certain letters of the deceased. The court overruled motions of Weinrich to strike certain portions of the answers to his cross-petition.

The following facts are shown by the record and are not in dispute: plaintiffs' petition was filed September 30, 1943, and Weinrich's cross-petition was filed November 6, 1943; Edward W. Ramiller died September 12, 1942; on March 1, 1911, by written contract, Weinrich sold the land involved to the decedent for $20,000, and Anna Ramiller signed the contract; subsequently $2000 was paid on the purchase price, and also the accruing interest; on March 1, 1923, the decedent borrowed $18,000 from the Iowa State Savings Bank of Burlington and paid Weinrich the amount due on his contract; on the same date decedent and his wife, Anna Ramiller, executed their note for $18,000 payable on March 1, 1928 to said bank or its order, bearing semiannual interest at six percent, and eight percent after maturity; Weinrich executed a deed to the farm to Edward W. Ramiller at this time; on the same date Ramiller and wife executed a mortgage on the land to the bank securing the $18,000 note; the mortgage shows the amount of the note; the mortgage was filed for record and recorded in the office of the recorder of Des Moines County on March 3, 1923; on May 31, 1923 the said bank indorsed without recourse the note, and assigned the mortgage, to Weinrich; this assignment was never placed of record; on March 12, 1928, the said bank and Ramiller and his wife executed an agreement extending the maturity of the note for five years after March 1, 1928; this extension agreement was never placed of record; Weinrich pleaded in an amendment to his cross-petition that the bank executed the extension agreement as his agent; he also pleaded that he was the owner of the note at said time; Weinrich testified that: 'Mr. Ramiller didn't know I had this mortgage for several years. He always paid in the bank $1080, deposited it there and they would give him a receipt for the interest on the note. They would give my bank account credit for the interest payment. The bank failed about the 2nd of February, 1932'; an administrator of the decedent's estate was appointed September 17, 1942, and at once posted notices of his appointment; no claim for this indebtedness was ever filed against the estate; the only extension agreement made so far as the record in the case shows was the one above referred to; no agreement extending the maturity of the mortgage debt was ever recorded, in the office where the mortgage was recorded, and there was never any entry on the margin of the record of the mortgage of any extension of the maturity of the debt secured by it, or any part of it.

Just how the appellant computed the amount alleged to be due on the note does not definitely appear. Neither are the payments nor the dates thereof shown. The widow contends that more than ten years had elapsed from March 1, 1933--the maturity fixed by the extension agreement--when when the cross-action was brought. She also urges that the alleged revivor writings of her husband were inadmissible under section 11257, code of 1939--the 'dead man's' statute--and also that the writings were not signed by her, and are not shown to refer to the indebtedness sued upon. Weinrich testified that Ramiller owed him no other indebtedness. Objection was made that he was an incompetent witness under code section 11257, supra.

I. It is our conclusion that the decisive factor on the issue of foreclosure is section 11028 of the 1939 Code, which provides that 'no action shall be maintained to foreclose or enforce any real estate mortgage, bond for deed, trust deed, or contract for the sale or conveyance of real estate, after twenty years from the date thereof, as shown by the record of such instrument', unless such record 'shows that less than ten years have elapsed since the date of maturity of the indebtedness or part thereof, secured thereby, or since the right of action has accrued thereon, or unless the record shows an extension of the maturity of the instrument or of the debt or a part thereof, and that ten years from the expiration of the time of such extension have not yet expired, * * *.' The mortgage which appellant cross-petitioned to foreclose and enforce, as shown by its record, bears the date of March 1, 1923, and the cross-petition was filed November 6, 1943, and no notice of its filing was ever served on any appellee, or placed in the hands of the sheriff for service. More than twenty years from the date of the mortgage, as shown by its record, had elapsed before appellant's action was begun, and no exception or condition noted in the section which might have saved the right to foreclose is shown by the record of the mortgage. There is no showing in the record of the mortgage that less than ten years had elapsed from the maturity of the promissory note secured or from any extension of its maturity. It is not sufficient under the provisions of this section to establish by evidence, other than the record of the mortgage, the fact that less than ten years had elapsed since the maturity of the debt. The statute requires that such fact must be shown by the record of the mortgage. Section 11028 also provides that any extension must be shown by 'filing an extension agreement, duly acknowledged as the original instrument was required to be acknowledged, in the office of the recorder where the instrument is recorded, or by noting on the margin of the record of such instrument in the recorder's office an extension of the maturity of the instrument or of the debt secured, or any part thereof; each notation to be witnessed by the recorder and entered upon the index of mortgages in the name of the mortgagor and mortgagee.' No such evidence of any extension was placed on record in the recorder's office, and there is no showing in the record in the case that any such extension agreements existed. It is made clear by section 11028 that any alleged admissions of the existence of the debt in any writings of Edward W. Ramiller do not comply with the exceptions and conditions required by the section, and do not entitle the appellant to foreclose the mortgage against any part of the land.

Section 11028, Code of 1938, was enacted as 'Sec. 2. Foreclosure of certain mortgages. * * *' of chapter 152 of the laws of the 31st General Assembly, approved March...