Schafer v. Jackson
| Decision Date | 09 April 1912 |
| Citation | 135 N.W. 622,155 Iowa 108 |
| Parties | ALOIS SCHAFER, W. D. TISDALE as Ancillary Executor of the Last Will and Testament of ALOIS SCHAFER, Deceased, in the State of Iowa, Substituted as Plaintiff, Plaintiff and Appellee, v. M. E. JACKSON, SARAH ELENOR JACKSON, Appellants. L. O. MONTGOMERY, R. J. MONTGOMERY, EDWARD JORDAN, MRS. EDWARD JORDAN, A. J. CREAMER, MRS. A. J. CREAMER, Defendants |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--HON. C. W. VERMILLION, Judge.
SUIT in equity to foreclose a real estate mortgage and note for $ 350. The mortgage and note were executed by defendants M. E Jackson and Sarah E. Jackson. The Jacksons, as principal defendants, set up various affirmative defenses which are considered in the body of this opinion. There was a decree for the plaintiff awarding the full relief prayed. The defendants Jackson appeal.--Affirmed.
Decree affirmed.
Chester W. Whitmore, for appellants.
Tisdale & Heindel, for appellee Tisdale.
W. W Epps, for appellees Jordan.
Frank T. Nash, for appellees Cook and Bollinger.
The defendants Jackson are husband and wife. The mortgage covered a small tract of real estate situated in Wapello county, and owned by these defendants and upon which they erected three small residences. The note and mortgage were executed July 13, 1891, and were drawn to mature in five years. In February, 1894, the Jacksons sold the property to L. O. Montgomery, subject to mortgage. Thereafter the property passed to successive purchasers, some of which are named as defendants herein. This suit was begun in December 1902, but no service was had upon the defendants Jackson until July, 1910. They had departed from Wapello county prior to the commencement of the suit, and departed from the state of Iowa in March, 1903, and continued nonresident for nearly five years, at the expiration of which time they came back to the city of Des Moines. In 1907 the plaintiff died, and his administrator was substituted as plaintiff.
The defendants set up the following affirmative defenses:
(1) Deny that they or either of them are indebted to plaintiff in any sum whatsoever.
And for affirmative defense to the claims of plaintiff said defendants assert:
That the tax sale of said lot 2, etc., by deed of date April 12, 1909, was and is valid. That notice of expiration of time to redeem from said sale was served as by law required upon said Edward Jordan by reading the same to his wife and leaving a copy of same with her for said Edward Jordan at the home of the latter in said city of Ottumwa by Morris W. Christie as agent for and on behalf of said Dora L. Cook, the purchaser at said tax sale and the owner of such certificate, and said defendants pray that, upon the trial of this action, the return to said notice of expiration be corrected and amended in accordance with the facts. That said notice was filed and verified and recorded as required by law, and such record shows completed service of said notice, as said defendants are informed and believe and charge the facts to be.
(2) That on or about February 21, 1894, defendants traded said real estate lots 1 and 2 etc., Egan's First addition to Ottumwa, to one L. O. Montgomery, subject to the mortgage involved herein. That thereafter, by letter dated July 13, 1894, said Alois Schafer recognized said L. O. Montgomery as the principal debtor on said note and mortgage, and, without the knowledge or consent of answering defendants, extended the time of payment thereof three years. That by such course these defendants were led to, and did, believe that the mortgagee was looking along to said L. O. Montgomery for payment, and were thereby induced to forego recourse against said L. O. Montgomery and said property to protect the mortgagors against nonpayment and delinquency. That by such conduct said Alois Schafer and plaintiff are now estopped from asserting said note or mortgage against plaintiffs.
(3) That by the terms of said mortgage the mortgagee was authorized to see to the payment of taxes on said property, and it was his duty to not permit such property to be sold at tax sale for nonpayment of taxes. That, when such property was sold by defendants to said L. O. Montgomery by and with the consent of said Alois Schafer, defendants were thereupon by operation of law and the implied agreement of the parties relieved from the duty of paying taxes on said property. That said Alois Schafer by his laches and neglect failed to discharge this duty to see that the taxes on said property were paid, and carelessly permitted same to go to tax sale, thereby defeating the lien of said mortgage upon said lot 2. That defendants relied upon said Alois Schafer to discharge his duty of seeing that said taxes were paid, and believed that he had done so and did not know otherwise, and were under no duty to know otherwise, until this suit was instituted, and said defendants had the lawful right so to rely, and said Alois Schafer knew that they were relying upon said L. O. Montgomery and Alois Schafer paying said taxes, and by such conduct on the part of said Alois Schafer said defendants were induced to forego measures they could and would at the time have taken to prevent the loss of said property at tax sale and avoid the defeasance of said mortgage. Whereby said Alois Schafer, and plaintiff as his representative, is by his conduct estopped from asserting said note and mortgage against defendants.
(4) That by the terms of said mortgage the mortgagee was authorized to keep the improvements on said real estate insured. That with the money received from said Alois Schafer upon said note and mortgage defendant M. E. Jackson purchased the material, and at his own expense furnished the labor for construction of three houses situated on said property, each of the value of about $ 400. That said M. E. Jackson furnished, and said Alois Schafer received and accepted from him, policies of fire insurance upon said three houses accompanying said mortgage, and as required by the terms thereof. That prior to the expiration of said policies answering defendants parted with their interest in the property by and with the consent of said Alois Schafer, who thereafter by his laches and neglect failed to comply with his legal duty in the matter to see that said insurance was maintained, and carelessly permitted one of the policies to expire. That one of said houses burned while owned by Sell Mace, about 1900, and through said carelessness, laches, and neglect of said Alois Schafer he failed to realize insurance upon said house, as he would have done had he discharged his duty in the premises. That, after parting with the property with the knowledge and consent of said Alois Schafer, defendants believed he would see to the insurance on said property and relied upon his doing so, as they had the right to do, and said Alois Schafer well knew thereof. By such reliance they were induced to forego measures they would otherwise have taken to protect said mortgage and property from loss or damage by fire. By his conduct in the premises plaintiff through said Alois Schafer is estopped from asserting against defendants any claim upon said note or mortgage, the value of said house, and the amount of the insurance originally furnished thereon by defendants, exceeding the amount then due on said note and mortgage.
(5) That, after said defendants by and with the knowledge and consent of said Alois Schafer had transferred said property to said L. O. Montgomery, one of the three houses was purchased and removed from said land by a party by name of Kitterman, without the knowledge or consent of de...
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