Toll v. Toll

Citation206 N.W. 117,201 Iowa 38
Decision Date15 December 1925
Docket NumberNo. 36756.,36756.
PartiesTOLL v. TOLL ET AL.
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Boone County; H. E. Fry, Judge.

This is an action in equity for the partition of real property and for other relief in equity. The defendants, except R. P. Toll, are the holders of mortgage or judgment liens on the whole or an undivided part of the land. The case is fully stated in the opinion. Mary Toll, the plaintiff, is now deceased, and Frank Toll, the executor of her estate, has been substituted as plaintiff. There was a decree below in favor of plaintiff, as prayed, and the Union National Bank of Ames alone appeals. Affirmed.Nichol & Nichol, of Ames, for appellant Union Nat. Bank.

T. J. Mahoney and F. L. Mackey, both of Boone, for appellee Mary Toll.

STEVENS, J.

Mary and R. P. Toll were at the time this action was commenced the joint owners of the north one-half of section 1, township 82, range 25, Boone county. On December 2, 1919, they executed a joint negotiable promissory note for $24,000, with interest coupons attached, and also a note for $1,200, together with mortgages upon the above-described real estate to secure payment thereof to Annis & Rohling Company of Council Bluffs, Iowa. At the time of the trial the $24,000 mortgage was held by the Metropolitan Life Insurance Company, named as a defendant. On November 10, 1921, R. P. Toll executed a note for $12,000 to the Union National Bank of Ames, together with a mortgage upon his undivided one-half interest in the above real estate, subject to the prior mortgages of Annis & Rohling Company to secure the payment thereof. The other defendants are judgment creditors, whose claims were adjudicated by the decree, and who have not appealed.

The only questions, therefore, presented for review, are those arising out of the respective claims of Mary Toll and the Union National Bank. Appellee alleged in her petition and a cross-petition filed by her that she was the owner of an undivided one-half interest in and to the above-described tract; that she signed the notes and mortgages to Annis & Rohling Company as surety only, and asked that the land be partitioned, and that, so far as possible, the incumbrances be paid out of the interest of R. P. Toll, and that she be subrogated to all of the rights and equities of the holders of the Annis & Rohling mortgages, and for all general equitable relief. The prayer for partition of the land was granted without objection and appellee was given the N. E. 1/4 and R. P. Toll the N. W. 1/4 of the fractional one-half section above described. The Ames National Bank resisted the claim of appellee that she signed the notes to Annis & Rohling Company as surety only and denied her alleged right to be subrogated to the rights and equities of the holders thereof. The court, on this branch of the case, found that appellee signed the notes with R. P. Toll, who is her son, as surety only; that appellant received its mortgage with notice of that fact; and that she was entitled to be subrogated to all of the rights and equities of the prior mortgagees, and so decreed, requiring that the northwest 1/4 be first exhausted for the payment of the prior mortgages, and providing the order and manner of sale thereof on special execution. The decree made further provision for the protection of appellee's right of subrogation, but it is not necessary to state the terms thereof.

Two general propositions are urged by appellant as grounds for reversal: (a) That the evidence is wholly insufficient to establish appellee's claim that she signed the notes to Annis & Rohling Company as surety only; and (b) that appellant received its mortgage without notice that appellee signed the same as surety and that she is estopped by her conduct as against appellant to assert a right to subrogation. We will dispose of these propositions in the order stated.

[1] I. Mary and R. P. Toll purchased the north fractional one-half of section 1, township 82, range 25, Boone county, several years ago and lived on it a good many years, improving it and paying the incumbrances thereon. Later they moved from the farm to Kelly, a nearby town, where they resided at the time the notes and mortgages were executed to the Annis & Rohling Company. R. P. Toll, during the recent land boom, engaged extensively in real estate speculations, becoming so involved that he could not pay his obligations, and at the time of the trial had been adjudged a bankrupt. The evidence is quite conclusive that Mary Toll received no part of the proceeds of the $24,000 mortgage; that the...

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