Swan v. Mitchell

• Decision Date: 01 January 1891
• Citation: 47 N.W. 1042,82 Iowa 307
• Parties: FRANK SWAN, Appellee, v. JOHN C. MITCHELL et al., Appellees; E. WOOLLEY, Appellant
• Court: Iowa Supreme Court

47 N.W. 1042

82 Iowa 307

FRANK SWAN, Appellee, v. JOHN C. MITCHELL et al., Appellees;

E. WOOLLEY, Appellant

Supreme Court of Iowa, Des Moines

January 1, 1891

MONDAY FEBRUARY 9, 1891.

Appeal from Story District Court.--HON. JOHN L. STEVENS, Judge.

THIS is an appeal by the defendant Woolley from an order appointing a receiver to take possession of certain real estate.

Reversed.

Dyer & Fitchpatrick, for appellant.

D. J Vinje, for appellees.

OPINION

ROTHROCK, J.

On February 11, 1887, the defendants, John C. Mitchell and Martin D. Mitchell, executed to plaintiff their promissory note for the sum of fifteen thousand dollars, payable on February 11, 1892, with interest at the rate of seven and a half per cent. per annum, payable semi-annually. They also executed a mortgage to the plaintiff upon a farm of five hundred and four acres, to secure the payment of the said sum and interest. The mortgage contains many provisions not ordinarily found in such instruments in this state. It is verbose and replete with repetition, the only effect of which is to increase the fees of the county recorder. The granting part of the instrument contains the following provision: "To have and to hold the premises above described, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, and the rents, issues, products and profits thereof with the second party, his heirs and assigns forever." It provides for the payment of taxes by the mortgagors, and for the insurance of the buildings on the land for the benefit of the mortgagee; and that the mortgagors shall keep the buildings, fences and other improvements on the land in good repair; and that a failure to pay any installment of interest when due, or within thirty days thereafter, should cause the whole sum secured by the mortgage to become due; and that the holder of the debt might thereupon elect to foreclose the mortgage immediately for the whole of the debt, interests and costs. The instrument contains the following further stipulation: "And it is also expressly stipulated and agreed between the parties hereto that in the event of any failure to pay said sums of money, or any part thereof, or the interest thereon, when due and payable, or to perform any of the covenants as above provided, then the said second party shall be, and is hereby, authorized by himself or agent, at his option, to take immediate possession of said property, and remove all persons therefrom without process of law, or, upon giving said first parties five days' notice of such intention, said second party may commence an action of forcible entry or detainer to recover the possession of said premises, and to rent or to cultivate the same, as he may deem best for the interest of all parties concerned, and shall be held liable to account to the first party only for the net profit thereof. It is also agreed that the taking possession thereof, as above provided, shall in no manner prevent or retard the second party in the collection of said sums by foreclosure or otherwise." The mortgagors made default in the payment of the installments of interest which became due in February and August, 1889, and on the fifth day of September of that year the plaintiff commenced this action to foreclose the mortgage and demanded judgment and a decree of foreclosure, "and that a receiver be appointed to take charge of the mortgaged premises, and rent the same, and apply the proceeds in payment of the plaintiff's claim." The mortgagors did not appear to the action, but made default.

E. Woolley, the appellant, was made a party, and on September 24, 1889, he answered, alleging that he was in possession of the farm as lessee of the mortgagors, by a lease dated November 10, 1887; that said lease was for three years from March 1, 1888; and that he had paid cash rent for the premises in advance. He denied that John C. Mitchell and Martha D. Mitchell, the mortgagors, were insolvent, and averred that the mortgaged...