Roberts v. Rumley

• Decision Date: 22 April 1882
• Court: Iowa Supreme Court
• Parties: ROBERTS v. M. & J. RUMLEY AND OTHERS.

58 Iowa 301

12 N.W. 323

ROBERTS

v.M. & J. RUMLEY AND OTHERS.

Supreme Court of Iowa.

Filed April 22, 1882.

Appeal from Hardin circuit court.

This is an action for an injunction to restrain the selling of certain property levied upon under an execution, and for a decree cancelling the judgment, and subrogating the plaintiff, to the extent of $100, to the rights of the mortgagees in a certain mortgage in the petition described. The court granted the relief prayed. The defendants appeal. The material facts are stated in the opinion.E. W. Eastman, for appellants.

W. V. Allen, for appellee.

DAY, J.

In 1872 one J. H. Hoffman and the plaintiff, W. H. Roberts, executed to the defendants M. & J. Rumley three promissory notes; the makers being in form both principals, but, as between themselves, Roberts being a surety. In 1874 said Hoffman executed to said Rumleys two promissory notes. On the twenty-fifth day of February, 1876, the Rumleys recovered judgment against Hoffman on said two notes for $747.50, and costs, and attorney's fees; and on the third day of March, 1876, the said Rumleys recovered judgment against Hoffman and Roberts on said three notes for $611.25, and costs. Huff & Reed, Esqs., were attorneys for the plaintiffs in the procurement of these judgments. Upon the last judgment an execution issued, which was levied upon a stock of drugs of W. H. Roberts, the present plaintiff. Hoffman was insolvent. In order to secure a release of his propertyfrom the execution, Roberts proposed to Huff & Reed that he would procure Hoffman to execute a mortgage upon his homestead to secure the judgment. Huff & Reed declined to entertain the proposition unless Hoffman would make the mortgage to secure both judgments.

Pending this proposition, Huff & Reed, on the tenth day of February, 1878, wrote to W. E. Higgins, Esq., the attorney of the Rumleys, through whom the notes were sent for collection, and who, as well as the Rumleys, reside at La Porte, Indiana, a letter as follows: “We have had execution issued on the judgment of M. & J. Rumley v. J. Hoffman, and one of the judgments on which there is no security, amounting to the sum of $934.15; and the one W. H. Roberts is joint judgment defendant, amounting to the sum of $718.93, and, we presume, as between him and Hoffman, is surety. The real estate of Hoffman, which is in the name of his wife, is encumbered for about the sum of $7,000 by mortgage, and in acres 400, or about that, and he has nothing else whatever that we can find reachable by execution. This land, no doubt, is his, but in the name of his wife, fraudulently, and could be reached by creditor's bill; but then your clients would be compelled to redeem from the mortgage by the payment of this sum, or about the sum named, and we apprehend that would hardly pay; while Roberts has a small drug store only that can be reached by execution, and the whole contents would not pay more than $200, with costs, the sheriff thinks. Now, Hoffman says with a little time he will give additional security, with Roberts, by mortgage on their homestead at Ackley, in the name of his daughter, worth, he claims, $2,000,--we think from $1,500 to $1,800,--the title of which is good, as we have examined the same. On this proposition he wants to pay in instalments of one, two, and three years. Perhaps we could get him to do a little better than that, but that is his proposition. This, we think, would give pretty good security on the judgments, and will secure the payment of the same. Now, by execution, we can make but a mere nominal sum and costs, with no prospect of making any additional sum on the judgment. Inasmuch, therefore, as you have no security on the large judgment, and but little on the other, do you not think we had better make some such an arrangement with him as to secure on this homestead, which cannot be reached at all by execution? It is our judgment that this proposition by all means ought to be accepted and the security taken, and we recommend its acceptance at once. Of course we would let the judgments stand as they now are, and take the mortgage to secure the payments of the judgments, so there would be no change in the form of the claims. Please answer at once, and let us know if we shall accept of this proposition and take the security, as we believe it will insure the full payment of both these judgments. We have examined Hoffman's matters, and they are as above stated.”

Higgins exhibited this letter to his clients, the Rumleys, and, upon consultation with them, on the thirteenth of February, 1878, wrote Huff & Reed as follows: “Yours, without date, received last night. Upon the representations therein, and relying upon your judgment that it is the best thing we can do, I will consent to the J. Hoffman proposition, with the further provision that Hoffman pay say $100 now, to apply on fees, you keeping $50, and send me $50. Then divide the balance of the claims into three equal instalments, one, two, and three years, with interest at 10 per cent. annually, and take good security. Figure up the judgment, interest, and costs, and make that sum the new principal, which must bear interest as stated. Then put in the mortgage a provision that on failure to pay the first instalment or any instalment the whole debt shall come due at our option, and if he puts us to expense of foreclosing he must pay expenses, including attorney's fee, and all will be right if this is done. Then send the new papers to me.”

On March 14, 1878, J. H. Hoffman, with his wife and his daughter, Caroline, executed to the Rumleys a mortgage on two lots in the town of Ackley, which property was occupied by the Hoffmans as their homestead, and the title of which was in said Caroline. The mortgage recites said two judgments, and that they amounted to $1,778.36, besides accrued costs on the executions, and is conditioned to pay $889.18 of said sum on the fourteenth day of October, 1879, and $889.18 on the fourteenth day of April, 1881, with interest on both payments at the rate of 10 per cent. per annum, payable annually, and all costs, and provides that if the property shall be sold...