Steckel & Son v. Standley

• Decision Date: 15 December 1898
• Citation: 77 N.W. 489,107 Iowa 694
• Parties: STECKEL & SON, Appellants, v. S. S. STANDLEY
• Court: Iowa Supreme Court

77 N.W. 489

107 Iowa 694

STECKEL & SON, Appellants, v. S. S. STANDLEY

Supreme Court of Iowa, Des Moines

December 15, 1898

Appeal from Davis District Court.--HON. M. A. ROBERTS, Judge.

ACTION in equity to recover the amount due on a promissory note and other demands, and for the foreclosure of a mortgage. There was a hearing on the merits, and a decree from which the plaintiff appeals.

Affirmed.

Payne & Sowers and Amos Steckel for appellant.

H. C Traverse and H. C. Taylor for appellee.

OPINION

ROBINSON, J.

The record discloses the following facts: In March, 1888, one Stephenson owned a farm in Davis county, and in that month executed thereon a mortgage to Mary E. McChesney to secure the payment of a promissory note for one thousand dollars which matured January 1, 1893,. In October, 1891, the farm was purchased by Charles B. Parkinson; and in March, 1892, he executed a mortgage thereon to Amos Steckel as trustee, to secure the payment of a promissory note of Parkinson to Barbara Steckel for one thousand one hundred dollars, which became due February 1, 1895. In February, 1894, Parkinson conveyed the farm to C. J. Butterfield; in March, 1894, Butterfield conveyed it to Frank L. Carr; and in December of the same year Carr conveyed it to Carrie Widney. Each of the conveyances was a warranty deed, and provided that the grantee therein named assumed the payment of the mortgages specified. On the ninth day of February, 1895, Carrie Widney and her husband conveyed the farm to the defendant, by a deed which contained a general covenant of warranty, excepting as to the two mortgages, interest, and taxes; but the deed did not provide that the defendant should pay the incumbrances specified. In January, 1893, the McChesney loan was extended to January 1, 1896. In the latter part of the year 1894 and the first part of the year 1895 there were negotiations between the plaintiff and Widney, the husband and agent of Carrie Widney, for an extension of the two loans, and for a new loan of four hundred dollars or five hundred dollars, but the extension and new loan were not made. On the eighth day of February, 1895, the plaintiff, a co-partnership composed of Amos and W. J. Steckel, furnished to Widney a statement of account, which, with explanations, shows that the plaintiff had collected rents from the farm for the year 1894 to the amount of one hundred and twenty-one dollars and twelve cents, and that it claimed, for interest it had paid, for an amount due by reason of a sale for taxes, for certain expenses incurred, and for services alleged to have been rendered, sums to the amount of five hundred and six dollars and eighty-six cents, including an item of one hundred and five dollars for the extension of the loans. When the defendant purchased the farm, on the next day, he offered to pay the amount of the two loans, and the full amount claimed by the plaintiff, after deducting therefrom the sums of one hundred and twenty-one dollars and twelve cents and one hundred and five dollars, but the offer was refused. The defendant has since paid the McChesney mortgage, and redeemed the land from the tax sale made to the plaintiff. The plaintiff is now the owner of the Steckel note and mortgage, and brought this action to recover the amount due on the land, and for various sums for the payment of which it insists that the farm is liable. The defendant claims to have made a valid tender of one thousand three hundred and eighty dollars and seventy-four cents, as the amount due the plaintiff, for which the farm is liable, and has delivered to the clerk of the district court a certificate of deposit for that amount. The district court found that the tender was good, and sufficient to pay the plaintiff the full amount for which it had a lien on the farm, and rendered a decree of foreclosure, in harmony with the finding. It deducted from the recovery allowed the item for one hundred and five dollars, and also excluded the one hundred and twenty-one dollars and twelve cents for rent.

I. The appellee has filed a motion to affirm the decree or dismiss the appeal on the ground that the abstract shows that only the evidence "offered and introduced," and not that offered but not received, was made of record by the certificate of the trial judge. After the motion was served, the appellant filed an amendment to its abstract and transcript which cures the defect pointed out by the motion. But the appellee has filed a motion to strike the amendment from the files on the ground that it was filed too late, and is a surprise to the appellee. The appellee argued the case on its merits, without in any manner pointing out the defect. The amendment was filed within a reasonable time after the defect was called to the attention of the appellant, and should, we think, be permitted to remain on file. Both motions are therefore overruled.

II. The plaintiff does not seek a personal judgment against the defendant, but only to enforce its claim against the farm, and urges in this court, as against the decree of the district court, that it is entitled to one hundred and five dollars as commissions for services rendered to procure an extension of the loan for Widney, that the one hundred and twenty-one dollars and twelve cents should not have been deducted from the amount of its recovery,...