Secor v. Siver
| Decision Date | 14 April 1914 |
| Citation | 146 N.W. 845,165 Iowa 673 |
| Parties | BERTIE SECOR, Administrator, H. S. KURTZ, Ancillary Administrator, Appellees, v. ELIZABETH SIVER, JAMES E. SIVER et al., EDW. SIVER and FRANK SIVER, Appellants |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. MILO P. SMITH, Judge.
ACTION upon a foreign judgment. Defendants interposed various defenses, to some of which plaintiffs demurred. The demurrer was sustained, and exception taken, and the case went to trial upon the remaining issues, resulting in a judgment and decree for plaintiffs, and defendants appeal.--Reversed and Remanded.
Reversed and Remanded.
Redmond & Stewart, for appellants.
E. A Johnson, for appellees.
The action is upon a judgment rendered in the state of New York, in a suit by Margaret J. Secor, administrator, against Elizabeth and James E. Siver, on August 28, 1895; it being a deficiency judgment, amounting, as is alleged, to the sum of $ 1,709.58. Margaret Secor died, and plaintiff was substituted as administrator in the courts of New York.
The cause of action was originally held by John S. Secor, deceased. This suit is in equity, for the reason that certain conveyances made by James E. and Elizabeth Siver to their sons, Ed and Fred Siver, also defendants, were alleged to have been made to hinder, delay, and defraud plaintiffs of their rights. An ancillary administrator was appointed in this state, and this administrator is joined as a party plaintiff.
Among other defenses, the principal defendants pleaded that the judgment was based upon a note executed to John F. Secor by James E. and Elizabeth Siver, as the purchase price of certain real estate in the state of New York, which note was secured by mortgage upon the said real estate. They also pleaded that Secor obtained the note by fraud, and misrepresentations in the sale of the land, and that he;
Taking advantage of their circumstances, and with the intention to overreach cheat, and defraud these defendants, knowingly and wilfully misrepresented said property to be of great value, to wit, from $ 3,500 to $ 4,000, that the farm was fertile, that the orchard was thrifty, thriving, and productive, and that the mill was in much demand and a money maker, and that the apple orchard was a guarantee of permanent prosperity and pastoral joy; that all of said representations were false, and were known by the said John F. Secor, at the time of their making, to be false, and were made with the intention to deceive and mislead the defendants, and the defendants were deceived and misled thereby; that said property, by reason of nonuse and misuse and neglect, was worth no more than $ 1,000; that the dwelling house was much decayed and deteriorated by reason of nonuse, leaky roof, and unfastened windows and doors; that the principal parts of the machinery of the sawmill were broken and valueless; that there was no trade in the vicinity for a sawmill; and that the apple orchard had been, by reason of neglect, riddled and devastated by tree pests and borers, all of which facts were unknown to these defendants, and not observable from external appearances to the unpracticed and unexperienced observer; that these answering defendants believed the representations of the said John F. Secor, and relied thereon, and believed that the said premises were actually worth in excess of $ 3,500, and, acting on such belief, induced by the said John F. Secor fraudulently and with the fixed and set purpose and design of cheating and defrauding these defendants, these defendants exchanged for said real property their homestead in the village of Altamont, of the value of $ 1,500 less incumbrance thereon of $ 700, and made, executed, and delivered to the said John F. Secor their promissory note in the sum of $ 2,300, secured by a first mortgage on said mountain side farm and orchard, which mortgage was thereafter recorded in the office of the clerk of the county of Albany, state of New York, on the 18th day of January, 1893, in Book 405 of Mortgages, on page 116; that these answering defendants went upon said premises and made betterments thereon in the way of repair and renewal of the dwelling house and buildings, and labor in drainage, fencing, and attempted cultivation of the orchard, and renewal of new fruit trees, at a total expense of more than $ 800; that, in truth and fact, the orchard on said premises was ruined by borers and tree pests and said lands were otherwise unproductive, and, after spending their money, time, and labor, were unable to make their living and meet the accumulating interest on the mortgage given to the said John F. Secor and the taxes, and were obliged to abandon said premises; that, as these answering defendants say on information and belief on the foreclosure sale in the foreclosure of the note and mortgage given by these answering defendants to John F. Secor, said premises sold on the open market for, only $ 1,000, being the sum paid by the said John F. Secor, or his successors in interest, and were thereafter sold by the said John F. Secor, or his successors in interest, for the sum of $ 1,050; that said premises were worth the sum of $ 1,000 and no more, at the time they were purchased by these defendants from the said John F. Secor; and the said promissory note of $ 2,300 given by these defendants to the said John F. Secor, and upon which the alleged judgment claimed by the plaintiffs was thereafter rendered, as these answering defendants aver, on information and belief, was procured from them by the said John F. Secor without any consideration, and fraudulently, over and above the difference between the value of said farm lands, to wit, $ 1,000, and the equity in these defendants' homestead, $ 800, to the damage of these defendants in the sum of $ 2,100, no part of which has ever been paid; and that claim therefor is now the property of these defendants, and was the property of these defendants at the rendition of the judgment in the state of New York, herein declared upon. Wherefore these answering defendants pray judgment offsetting their damages as aforesaid as against any right or claim upon the part of the said John F. Secor, or his successors in interest, if the said John F. Secor is shown to be now deceased; and that the pretended judgment, if judgment has been rendered in favor of the said John F. Secor, or his successors in interest, against these answering defendants be declared null and void, canceled, satisfied, and discharged; and that the said John F. Secor, or his successors in interest, be forever barred, foreclosed, and estopped from having, claiming, or declaring upon any right, title, or interest, growing out of any claim based upon the note and mortgage of these answering defendants given to said John F. Secor as aforesaid; and for such other and further relief as the defendants may show themselves entitled to.
The other defendants filed a general denial.
Plaintiffs demurred to that part of the...
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