Ware v. Smith

• Decision Date: 05 December 1883
• Citation: 17 N.W. 459,62 Iowa 159
• Parties: WARE v. SMITH AND OTHERS.
• Court: Iowa Supreme Court

62 Iowa 159

17 N.W. 459

WARE

v.SMITH AND OTHERS.

Supreme Court of Iowa.

Filed December 5, 1883.

Appeal from Franklin circuit court.

Action to foreclose a mortgage given to secure a certain promissory note. The defendants pleaded in substance that the transaction out of which the notes and mortgage grew was never consummated, and that the notes and mortgage never took effect. There was a decree for the defendants. The plaintiff appeals.McKenzie & Hemingway, for appellant.

D. W. Dow, for appellee.

ADAMS, J.

The defendant E. A. Smith entered into a negotiation with the plaintiff through his agent, one Ellsworth, for the purchase for E. A. Smith's wife, the defendant L. B. Smith, of 80 acres of land. The price was agreed upon and certain papers drawn, including the notes and mortgage in question. A deed was made by the plaintiff, running to the defendant L. B. Smith. The notes and mortgage passed into Ellsworth's hands, and the deed passed into the hands of E. A. Smith, who was acting for his wife; but immediately upon inspecting the deed he objected to the same. The deed contained covenants merely of special warranty--that is, covenants merely against the grantor's own acts--and Smith claimed that he was entitled to a deed with full covenants. Such deed was never given. So far there is no controversy. As to how the transaction between Smith and Ellsworth was finally left, there is some conflict in the evidence.

Smith testified, in substance, that he did not accept the deed offered; that it was agreed that it should not be recorded, and that the transaction should be left open and unconsummated, and that Ellsworth should procure a deed with full covenants, and that the notes and mortgage should not be delivered to Ware until such deed be procured. Ellsworth, in his testimony, rebuts Smith to some extent. He did not keep the notes and mortgage, but sent them to Ware, and testifies, in substance, that he did not understand that he was to retain them, but understood that the transaction was closed. We are satisfied, however, that the preponderance of the evidence is in favor of the defendants. Ellsworth, in his testimony, says: “I was to start next day from home for three months, and everything was closed up hurriedly.” Under such circumstances we can easily conceive that his memory might not be as reliableas it would be under other circumstances. He says, indeed: “We had a good deal of talk on that day about it, the details of which I...