Thomas v. Desney
| Decision Date | 24 October 1881 |
| Citation | 57 Iowa 58,10 N.W. 315 |
| Parties | THOMAS v. DESNEY AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Guthrie circuit court.
Action to foreclose a mortgage executed by Helen and Daniel Desney. Thesser Jackson and C. Aultman & Co. were made defendants; it being stated they claimed title to or a lien on the mortgaged premises, but that the same was junior to the mortgage. A decree by default was entered against all the defendants except Aultman & Co. Between the latter and the plaintiff it was stipulated the cause should be “referred to Hon. J. R. Barcroft to take the evidence in writing, to find the facts and law, and to report to the court.” This was done. The referee made his report, to which Aultman & Co. filed exceptions, which were overruled, the report confirmed, and a decree entered for the plaintiff. Aultman & Co. appeal.Phillips, Goode & Phillips, for appellant.
D. G. Edmundson, for appellee.
As the only parties to this appeal are the plaintiff and Aultman & Co., the latter will be designated defendant. The only contention between the parties is as to who has the prior lien on the real estate mortgaged. The mortgage was executed and recorded in November, 1877, and thereunder the plaintiff claims. The defendant claims under a judgment by confession, which was entered of record May 21, 1877. The judgment being prior in point of time, the plaintiff claims it should be held to be junior to the mortgage on two grounds-- First, the judgment was rendered against “Ellen Desney,” and the plaintiff “had no knowledge, actual or constructive, of said judgment at the time of the execution of the mortgage;” second, the confession of judgment was delivered to one Moore, as an escrow, and the same was not to be filed or entered of record without the consent of the Desneys, and when they had obtained a loan secured by mortgage on said land. The referee found for the plaintiff on the last ground, and declined to pass upon the first because unnecessary.
The plaintiff insists the finding of the referee is right, but claims whether this is so or not is immaterial, because the decree must be affirmed on the first ground. If the premises are correct, this is in substance conceded to be so by counsel for the appellant; but the latter insists:
1. That the mortgagee had express notice of the judgment. The real estate belonged to Helen Desney, and it so appeared of record. She and her husband, Daniel Desney, confessed the judgment, and they employed one Moore to negotiate a loan, to be secured by mortgage on the real estate. Moore made application therefor to the New England Loan & Trust Company, who either made the loan for the plaintiff with funds in its possession belonging to him, or the application was submitted to him by the company, and the loan made by the plaintiff. It is not deemed material which way it was done, as it will be conceded the company was the agent of the plaintiff, who is a non-resident of the state. We do not understand it to be claimed that either the plaintiff or the company had express notice of the judgment. If mistaken in this we are sure there is no evidence so tending. Moore did have such notice, and it is insisted he was the agent of both the plaintiff and said company. Moore was employed by the Desneys and payed by them. He testifies, “Don't know but he was acting as agent for the company, or for all parties.” This is in the nature of a legal opinion, and the plaintiff is not bound thereby. The fact is, an application for the loan was signed by the Desneys, which was forwarded by Moore to the company. It described the land, and the Desneys therein agreed to furnish an abstract of title and a sworn appraisement of the land, and pay all expenses. The loan was made on said application. Moore was the agent of the Desneys, bound to do the best he could for them. Legally he could not well be the agent of both parties, and we do not think he was. He owed no duty to the plaintiff or said company, and was in no manner responsible to either. What he did or said could not be binding on the plaintiff, and therefore the latter and said company would not be bound by the knowledge of Moore. Wyllis v. Ault, 46 Iowa, 46;Smith v. Wolf, 8 N. W. REP. 429;Dickey v. Brown, 9 N. W. REP. 347.
2. The next question is, did the plaintiff have constructive notice of the judgment? The confession upon which it was rendered is entitled “ C. Aultman & Co. vs. Daniel Desney and Ellen Desney.” It was signed “Daniel Desney and Helen Desney,” and was sworn to by them. The judgment was rendered against “Daniel Desney and Ellen Desney,” and was so indexed in the judgment docket. The defendant insists that “Helen” and “Ellen” are the same. The rule is said to be: “If two names are taken promiscuously to be the same name in common use, though they differ in sound, there is no variance; where two names are derived from the same source,...
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