Seiffert & Wiese Lumber Co. v. Hartwell

Decision Date18 May 1895
CourtIowa Supreme Court
PartiesSEIFFERT & WIESE LUMBER CO. v. HARTWELL ET AL.

OPINION TEXT STARTS HERE

Appeal from district court, Pottawattamie county; H. E. Deemer, Judge.

Action in equity to recover the amount due on two promissory notes, and for the foreclosure of a mortgage given to secure their payment. The defendants filed a motion to strike certain portions of the petition. The motion was overruled in part. The defendants Libbie G. Hartwell and T. J. Hartwell, her husband, refused to plead further, and appealed. Reversed.

After the appeal was taken a decree was rendered in favor of the plaintiff for the amount due on the notes, and for the foreclosure of the mortgage.Robinson & Johns and A. B. Johns, for appellants.

Benjamin & Preston, for appellee.

ROBINSON, J.

The notes described in the petition were given by the appellants, and are dated December 22, 1890. One was for $181.75, payable 1 year after its date, and the other was for $181.80, payable 18 months after its date. They are alleged to be wholly unpaid, and no question is made in regard to either of them. To secure their payment a mortgage dated December 26, 1890, was given on the homestead of the appellants, which consisted of two lots in Arnold's addition to Oakland, in Pottawattamie county. It is not shown in which of the appellants the title to the lots was vested. The mortgage is in an ordinary form, and is signed and acknowledged by both of the appellants; but the name of the wife alone appears in the body of the instrument, and it is drawn throughout as though it was to be executed only by her. The petition alleges that, after the mortgage described was executed, the appellants executed to the defendants, David Bradley & Co., a second mortgage on their homestead, in the usual form, which contained a provision of which the following is a copy: “Subject to a mortgage given to Seiffert & Wiese Lumber Co., dated December 26, 1890, due in one and two years, for $365.55.” It is further alleged that by the execution of that mortgage the one to the plaintiff was recognized by the appellants and by David Bradley & Co. to be valid. The petition also alleges that the mortgage to the plaintiff was executed by virtue of a verbal agreement which provided that a valid and binding mortgage should be executed to the plaintiff on the homestead of the appellants, but that, by mistake of the scrivener, the name of the husband was not inserted in the body of the instrument, where it was required to be by the agreement. A reformation of the instrument, to make it conform to the agreement and intent of the parties, is asked. The averments of the petition on which a reformation was demanded were, on the motion of the defendants, stricken out, and no question in regard to the reformation is made in this court, and no further consideration will be given to that matter. The part of the motion which was overruled sought to have stricken from the petition all those portions which referred to and set out the mortgage to the plaintiff, and which averred a recognition of it by the execution of the mortgage to David Bradley & Co.

1. The first question presented for our determination is whether the order of the district court, so far as it overruled the motions to strike, is one from which an appeal may be taken. The appellee contends that it is not, and that the appeal should be dismissed. Section 3164 of the Code provides that an appeal may be taken to this court from various orders, and, among others, from “an intermediate order involving the merits and materially affecting the final decision.” This provision was construed in Specht v. Spangenberg, 70 Iowa, 489, 30 N. W. 875, and held not to apply on a ruling on a motion to strike out, as irrelevant, a part of a petition not designed to show a distinct cause of action. The motion under consideration in that case asked to have stricken from a petition matter pleaded, not as an independent cause of action, but in aggravation of damages. The motion in this case denied the right of the plaintiff to any relief on account of the mortgage in suit. To that extent the motion was, in effect, a demurrer. It did not assail the right of the plaintiff to recover on the notes, and no objection to them was made. The motion sought all the relief which the appellants demanded in the case, and the ruling on it materially affected the final decision. This is shown by a consideration of the rights claimed by the plaintiff. Had the motion been sustained, the plaintiff would have been deprived of an important part of the relief it demanded,--perhaps of all which would give the notes value. It is clear that the rulings involved the merits of the controversy, and affected materially the final decision. Bicklin v. Kendall, 72 Iowa, 490, 34 N. W. 283. We conclude that the appeal cannot be dismissed, and that the case must be determined on the questions presented by the ruling on the motion to strike.

2. The appellants contend: (1) That the mortgage to the plaintiff is absolutely void, and that they could not, as a matter of law, have confirmed it; (2) that, if they could have confirmed it, the facts pleaded do not show a confirmation.

Section 1990 of the Code, relating to homesteads, provides that “a conveyance or incumbrance by the owner is of no validity unless the husband and wife, if the owner is married, concur in and sign the same joint instrument.” Under this provision, the failure of the husband to join in the granting part of the mortgage was fatal to its validity, and it must be treated as void, unless it has been made valid by ratification. Wilson v. Christopherson, 53 Iowa, 481, 5 N. W. 687;Sharp v. Bailey, 14 Iowa, 387;Eisenstadt v. Cramer, 55 Iowa, 753, 8 N. W. 427.

The appellants contend that “confirmation” applies to that by which what was before voidable is made valid, as where one makes valid a voidable contract of his own, which he might have repudiated, while ratification applies to the act of another, in the nature of an act of agency. That such is the primary use of the words is true, but they are often used interchangeably, as synonyms. It was held in Stinson v. Richardson, 44 Iowa, 375, of the right of the wife in a homestead, the title to which was vested in the husband by a bond for a deed, that she could not verbally consent to an assignment of the bond made by the husband alone, and thereby estop herself to question it, and that nothing she could say or do, short of concurring in and signing the same joint instrument with her husband, would give the conveyance any validity. In the case of Spafford v. Warren, 47 Iowa, 47, it appeared that the wife had joined with her husband in executing an instrument...

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