Whitley v. Johnson
| Decision Date | 23 October 1907 |
| Parties | FRANCIS E. WHITLEY, Appellant, v. GEORGE JOHNSON ET AL., Appellees |
| Court | Iowa Supreme Court |
Appeal from Hamilton District Court.-- HON. J. H. RICHARDS, Judge.
ACTION in equity to foreclose a real estate mortgage. The plaintiff was denied the relief prayed, and he appeals.-- Reversed.
Reversed.
Wesley Martin, for appellant.
G. F Tucker and D. C. Chase, for appellees.
A statement of the issues seems necessary to an understanding of the situation. The petition declares upon a note and mortgage executed to plaintiff by Lucy H. Johnson,-- the mortgage covering one and one-half lots in Webster City. There is then an allegation of the death of Mrs. Johnson, and that she left surviving her as her sole and only heir at law the defendant George Johnson; further, that the defendant Charles Harris claims some interest in the mortgaged property. It is then alleged that whatever interest either of said defendants may have it is inferior to the lien of plaintiff's mortgage. The defendant Harris alone appeared. Pleading to the petition, he set up that in October, 1898, he was duly appointed guardian of the person and estate of Lucy H. Johnson, who then was, and for a long time prior -- including the date of plaintiff's pretended mortgage -- had been, an insane person. He denied on information and belief the existence of a note and mortgage as declared upon by plaintiff, but says that, if such was executed, it was not only without consideration, but was void for want of mental capacity to execute on the part of said Lucy H. Johnson. In an amendment to his answer said defendant pleaded full ownership in himself of the mortgaged premises in virtue of a deed executed to him by George Johnson.
The facts made to appear on the trial may be stated in substance as follows: On September 2, 1897, the premises in question were owned by Lucy H. Johnson, an aged widow, and had been occupied by herself and an aged unmarried daughter, Julia Johnson, as a homestead for many years. On the day named Mrs. Johnson executed a conveyance of the premises to her said daughter Julia. The instrument recited a consideration, and contained general covenants as to title etc. There was then this provision: It does not appear that this deed was ever made a matter of record. Following such deed, the occupancy of the premises continued as before down to the death of the daughter, Julia, which occurred August 17, 1898. Thereafter Mrs. Johnson occupied alone down to her death, which occurred September 7, 1899. The mortgage to plaintiff in question bears date August 13, 1898, and is in general terms and contains the covenants usually found in such instruments. Julia died intestate, as did also Mrs. Johnson.
On its face, the mortgage purports to secure a note of even date given for payment of $ 184.60. And it is the contention of plaintiff that said note was given in liquidation of an account for professional services rendered by him as a physician -- in part to Julia, and in part to Mrs. Johnson -- amounting to $ 134.60; that the additional sum of $ 50 was included in the note and mortgage when drawn pursuant to an arrangement, whereby plaintiff was to advance and loan Mrs. Johnson and Julia jointly money in that sum. It is admitted by him that the loan was not made, and it appears that shortly after taking the note he indorsed thereon a credit in the sum of $ 50. What was the preliminary agreement leading up to the execution of the mortgage by Mrs. Johnson we are not advised. The plaintiff testified on the subject, but over objection that he was not a competent witness under the statute. Code, section 4604. And, as we think the objection was well taken, we cannot consider his testimony.
It appears, however, that plaintiff did not know that the legal title to the property was in the daughter Julia, and that the interest of the mother was no more than a life estate. He testified that his information went no further than that they were both interested in the property. It also appears that plaintiff caused the note and mortgage to be prepared in advance, and that, as prepared, the same were intended to be executed by both Mrs. Johnson and Julia. He then took with him a notary public, and went to the Johnson home to secure execution and acknowledgment. They first entered the room occupied by Mrs. Johnson, and the notary testifies that the contents of the instruments were explained to her by him. It does not appear that she said anything other than to ask as to such contents. She was in bed at the time, and was propped up and given a pen with which she affixed her signature to the note and mortgage. Plaintiff and the notary then went to another room to the bedside of Julia. There they found the defendant Harris, and, on the purpose of the visit being...
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