Wentland v. Stewart

• Court: United States State Supreme Court of Iowa
• Citation: 18 N.W.2d 305,236 Iowa 258
• Docket Number: 46713.
• Parties: WENTLAND v. STEWART.
• Decision Date: 23 April 1945

18 N.W.2d 305

236 Iowa 258

WENTLAND
v.
STEWART.

No. 46713.

Supreme Court of Iowa

April 23, 1945

[236 Iowa 259] W. G. Henke, for Charles City, for G. A. Wentland, appellee and cross-appellant.

[236 Iowa 258] R. W. Zastrow, of Charles City, and F. A. Ontjes, of Mason [236 Iowa 259] City, for M. Edith Stewart, appellant, and R. Ray Stewart, appellee.

MILLER, Justice.

Plaintiff's original notice herein was served on Nov. 27, 1943. His petition, filed Dec. 4, 1943, demanded judgment on three notes, one for $3000, and two for $500 each, all dated March 1, 1928, and due Dec. 1, 1933, together with interest, attorney fees and costs, and prayed for foreclosure of a mortgage on a 38-acre farm to enforce the same. The answer of defendant M. Edith Stewart denied the execution of the notes and mortgage, asserted that plaintiff elected to declare all three notes due Dec. 5, 1932, that the second note for $500 had been materially altered, and that all three notes were barred by the statute of limitations prior to the commencement of the action. The answer of defendant R. Ray Stewart was to the same effect. Plaintiff's reply asserted a general denial of the allegations of the answers as well as specific denials thereof, that there had been an extension of time for the payment of the second note for $500, originally due Dec. 1, 1932, the extension being for one year and was endorsed on the face of the note, and further that the action was not barred by the statute of limitations because, in December, 1941, there was an admission in writing by the defendant M. Edith Stewart that the mortgage indebtedness was unpaid and ten years have not elapsed since the making of said admission in writing; also, defendants had waived any alleged declaration of the indebtedness being due prior to the date fixed in the instruments and they are estopped from asserting the bar of the statute of limitations herein.

Trial was had and on Dec. 16, 1944, the court entered a decree wherein it was determined: that, on Dec. 5, 1932, the plaintiff declared the entire indebtedness secured by the mortgage due; thereafter, on Dec. 26, 1941, defendant M. Edith Stewart delivered to plaintiff a check for $150 to apply on interest on the mortgage indebtedness; a notation on the check referred to the mortgage indebtedness here sued upon; there [236 Iowa 260] was no material alteration of the second $500 note but the notation of extension thereof on the face of the note did not prevent the running of the statute of limitations; the statute of limitations had run as to R. Ray Stewart at the time of the commencement [18 N.W.2d 306] of this action but the check for interest and the notations thereon, taken with defendant's testimony, revived the debt as against M. Edith Stewart pursuant to Section 11018, Code 1939, so that plaintiff was entitled to personal judgment against her alone. Judgment was entered, accordingly, against M. Edith Stewart for $7988.32 with interest, attorney fees and costs, the mortgage was ordered foreclosed to enforce the same and special execution therefor was authorized.

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