Ware v. Smith

• Decision Date: 05 December 1883
• Parties: WARE v. SMITH ET AL
• Court: Iowa Supreme Court

17 N.W. 459

62 Iowa 159

WARE v. SMITH ET AL

Supreme Court of Iowa, Des Moines

December 5, 1883

Appeal from Franklin Circuit Court.

ACTION to foreclose a mortgage given to secure certain promissory notes. 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 defendants. The plaintiff appeals.

AFFIRMED.

McKenzie & Hemingway, for appellant.

D. W Dow, for appellee.

OPINION

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 eighty 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 was 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 every thing was closed up hurriedly." Under such circumstances, we can easily conceive that his memory might not be as reliable as it would be under other circumstances. He says, indeed: "We...