Smith v. Godfrey
| Decision Date | 20 October 1925 |
| Docket Number | 36667 |
| Parties | SIDNEY S. SMITH, Appellee, v. J. M. GODFREY et al., Appellants (two cases) |
| Court | Iowa Supreme Court |
Appeal from Washington District Court.--D. W. HAMILTON, Judge.
THIS is a consolidation of two foreclosure suits which involve the same questions and the same defendants. There was a decree entered for the plaintiff in each case against all of the defendants. The defendants Godfrey and Eldridge have appealed.
Affirmed.
W. M Keeley and E. C. Eicher, for appellants.
Morrison & Morrison and Wilson & Wilson, for appellees.
It will be more convenient to confine the terms of our discussion to one case. Our conclusion and the reasons therefor will be applicable alike to both cases.
Taking the first entitled case, it appears that the plaintiff, Sidney Smith, was holder of a $ 50,000 mortgage duly executed by the defendants Boyer, Dayton, and Craig. These defendants have no defense to the mortgage, and decree was entered against them without contest. It further appears that the mortgaged land was sold by these mortgagors to the defendants Godfrey and Eldridge for a stated consideration of $ 88,000. In the deed of conveyance the said defendants Godfrey and Eldridge expressly assumed and agreed to pay the mortgage. The defendants Boyer, Dayton, and Craig impleaded the defendants Godfrey and Eldridge by filing a cross-petition against them and by serving notice upon them. These defendants appeared, and pleaded to the cross-bill, and denied all liability. They pleaded, in substance, that the assumption clause in the deed did not represent the true contract between the parties, and that it was inserted by mistake. They prayed a reformation of the deed by striking out such clause. Upon the issue thus tendered, trial was had, and a decree entered against the defendants to the cross-petition.
It will be noted that the controversy presented is essentially a controversy between the parties to the instrument. It is not permissible, therefore, to the grantees of the instrument to contradict its terms, except for the purpose of obtaining reformation thereof. The burden was upon them to prove their affirmative defense by such clear and satisfactory evidence as would warrant the court in reforming the instrument. The preliminary contract entered into between the parties did not contain the assumption clause, but it did contain a clause whereby the grantees expressly agreed to pay for the land the sum of $ 88,000. The deed was prepared by one Breitenbach, who assumed to act for both parties to the transaction. It was delivered by Breitenbach to the grantees personally at the time of its execution. It was examined by them at least within a few days, and the clause now objected to came to their notice at that time. They raised no question about it until some months after the beginning of this foreclosure suit, and until about eighteen months after they had accepted the deed. During all this period they were in frequent contact with their grantors, and had abundant opportunity to challenge the integrity of the deed.
This circumstance was a significant one, and doubtless had its weight with the trial court as tending to negative the ground of reformation now claimed. A reading of the record brings us to the conclusion that the evidence is not of that satisfactory character which would warrant the reformation prayed.
It is urged by the appellants that the transaction was a trade, and not a sale, and that they are not personally liable for that reason. The argument itself is not tenable. If they bound themselves in express terms to pay the mortgage, they became liable under their covenant, regardless of whether their transaction...
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