Waughtal & Son v. Kane

• Decision Date: 10 May 1899
• Parties: WAUGHTAL & SONS et al., Appellants, v. DANIEL KANE et al
• Court: Iowa Supreme Court

79 N.W. 91

108 Iowa 268

WAUGHTAL & SONS et al., Appellants, v. DANIEL KANE et al

Supreme Court of Iowa, Des Moines

May 10, 1899

Appeal from Palo Alto District Court.--HON. W. B. QUARTON, Judge.

THE plaintiff firm and the individual members thereof bring this action for judgment on a promissory note dated April 4, 1895 for seven hundred and fifty dollars, executed by the defendants Daniel Kane and W. T. Kane to the plaintiff firm also for a decree foreclosing a mortgage on real estate described, executed to secure the payment of said note. Judgment was rendered against the plaintiffs dismissing their petition and for costs, from which they appeal.

Affirmed.

F. A Kirschman and T. F. McCue for appellants.

Soper, Allen & Alexander for appellees.

OPINION

GIVEN, J.

I.

The mortgage in suit describes the following real estate in Palo Alto county: "The south one-half of the south one-half of section fourteen, in township ninety-six north, of range number thirty-three west of the 5th P. M., Iowa, containing one hundred and sixty acres according to the government survey, subject to a mortgage of one thousand eight hundred dollars given to F. L. Dodge. This land is owned by Daniel and Mary Kane. Also the south one-half of the northwest quarter, and the north one-half of the southwest quarter, of section 14, in township ninety-six north, of range number thirty-three west of the 5th P. M., containing one hundred and sixty acres, according to the government survey, subject to a mortgage of two thousand dollars to John C. Bennett. This land is owned by William T. Kane." Daniel Kane owned one of the forties first described, and he and his wife, Mary, resided thereon as their homestead. Mary Kane owned the other three forties by conveyance from her husband, Daniel, made about the twenty-sixth day of July, 1882. At that time Mary executed a power of attorney to Daniel Kane, authorizing "him in my place and stead to buy, sell, and convey all real estate and personal property, and collect all debts of every nature, whether legacies or interest, and give receipts in my name as full as I could do were I present myself." This instrument was duly acknowledged. The mortgage in suit as set out was executed by "Mary E. Kane, Daniel Kane, Mary Kane, by Daniel Kane, her attorney in fact." The abstract shows the name of "W. T. Kane" to the power of attorney, but not to the mortgage. As it is not claimed that he was a party to the power of attorney, and it is conceded that he was a party to the mortgage, we must assume that this is a mistake; but, whether so or not, it will not affect the question under consideration. The plaintiffs only seek foreclosure as to the land owned by Daniel and Mary Kane, the land of William T. Kane having been exhausted as a security by the mortgage thereon to John C. Bennett. On the fourteenth day of April, 1896, the defendant Celia G. Davies, with full knowledge of plaintiffs' mortgage and of the other lien on said land of Daniel and Mary Kane, purchased said land from them for the consideration of five hundred dollars, receiving their quitclaim deed therefor. After Mrs. Davies had appeared and answered in this case, to-wit, August 14, 1897, she and her husband, for the consideration of one thousand four hundred dollars, conveyed to W. S. Parnham "the same title that we received from Daniel Kane and Mary Kane," which conveyance Parnham received with knowledge of plaintiffs' mortgage and said other liens. Parnham was substituted as a defendant in the place of Mrs. Davies, and answered, joining issues with plaintiffs. The First National Bank of Emmetsburg, a judgment creditor of Daniel and Mary Kane, also answered, joining issues with plaintiffs. Parnham and the bank alone appear in resistance to plaintiffs claims on this appeal.

II. Appellees' counsel contend and cite authorities to show that this power of attorney does not authorize Daniel Kane to execute mortgages as attorney in fact...