Wolfe v. E.S. Jaffray & Co.
| Decision Date | 20 May 1893 |
| Citation | 55 N.W. 91,88 Iowa 358 |
| Parties | PATRICK B. WOLFE, Trustee, Appellee, v. E. S. JAFFRAY & COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Crawford District Court.--HON. GEORGE W. PAINE, Judge.
THE plaintiff, as trustee, prosecutes this action in equity to recover judgment against Fanton R. Lawlor, on his promissory note, and for a decree foreclosing a trust deed on certain land in Crawford county, executed by F. R. Lawlor to the plaintiff, as trustee, to secure the payment of said note. Default for want of answer, and decree of foreclosure were entered against the defendants Fanton R. Lawlor and Lillie C Lawlor, and judgment on the default against Fanton R. Lawlor. The defendants E. S. Jaffray & Co. and E. S. Jaffray, being made defendants, as claiming some interest in the land answered, denying, for reasons stated, the plaintiff's right to maintain this action, the validity of the trust deed, and setting up an alleged superior title to the land. The case was tried to the court, and decree entered in favor of the plaintiff, from which the defendants E. S. Jaffray & Co. and E. S. Jaffray appeal.
Affirmed.
T. J Garrison and Weigley, Bulkley & Gray, for appellants.
Shaw & Kuehnle and P. B. Wolfe, for appellee.
I.
The plaintiff moves to dismiss this appeal upon several grounds, one of which is, that the defendants F. R. Lawlor and Lillie C. Lawlor do not join in the appeal, and were not served with notice thereof. In Moore v. Held, 73 Iowa 538, 35 N.W. 623, it is held that, when the appeal is taken by a part of several coparties, service of notice on the other coparties is not jurisdictional; that when notice is served on the adverse party and clerk, and the clerk is secured his fees, this court has jurisdiction upon such questions in the case as affect only the rights of the parties before it, but, if the judgment appealed from can not be modified or reversed without injuriously affecting the interests of the absent coparties, the appeal can not be considered. See, also, Payne v. Raubinek, 82 Iowa 587, 48 N.W. 995. The controlling question presented on this appeal is whether the trust deed sought to be foreclosed is valid as against the appellants, as creditors of F. R. Lawlor. This question is made between the parties before us, and may be decided, as between them, without injuriously affecting the interests of F. R. Lawlor or Lillie C. Lawlor. The other grounds of the motion have been fully answered by an amended abstract. The motion is overruled.
II. There is no material controversy as to the facts in this case, and those necessary to be mentioned are, in substance, as follows: On February 17, 1881, Patrick Lawlor and Margaret, his wife, conveyed to Fanton R. Lawlor, their son, and John J. McGarry, their son-in-law, a large amount of real and personal property, in trust for the following purposes: Said trustees were to pay all debts owing by said Patrick Lawlor; to pay him and his wife, annually, six hundred dollars, so long as they both should live, and to the survivor of them, three hundred dollars during life; and, upon the death of both, to divide what remained equally between the heirs of Patrick Lawlor. The trustees accepted the trust, Mr. McGarry taking the management. He sold the property, paid the debts and annuities, and loaned, collected and managed the trust fund in his own name, as trustee, under the advice and assistance of the plaintiff, Patrick B. Wolfe, as attorney for the trustees. Fanton R. Lawlor took but little, if any, part in executing the trust, beyond joining in conveyances of the real estate. Patrick Lawlor died in October, 1889, leaving his wife and a number of children, including said Fanton R. Lawlor and Mrs. McGarry surviving him, all of whom are now living.
Some time prior to the execution of the note in suit, Fanton R. Lawlor desired to borrow a part of said trust fund to use in his business, but said fund being then loaned, Mr. McGarry indorsed for him in bank; and when the trust securities were converted into money, the money was applied upon the note in bank to the amount of five thousand, one hundred and thirty-four dollars, F. R. Lawlor agreeing to give security therefor. Some time after, Fanton R. Lawlor, at the instance of Mr. McGarry, executed the note in suit for five thousand, one hundred and thirty-four dollars, payable to "the order of John J. McGarry, as trustee," two years after date, with eight per cent. interest, and delivered the same to the plaintiff, Wolfe, as attorney for the trustees, with the consent and approval of Mr. McGarry. The note was dated April 28, 1888, to correspond with the time the trust money was paid to the bank. Mr. McGarry died in December, 1889, and on the sixth day of January, 1890, at the instance of the plaintiff, Fanton R. Lawlor and his wife, Lillie C., executed and delivered to him, as trustee, the deed sought to be foreclosed upon lands in Crawford county, Iowa to secure the payment of said note, which deed was duly recorded January 9, 1890. Said deed was subject to a prior mortgage to A. J. Clark for four thousand dollars.
On the same day (January 6, 1890), F. R. Lawlor assigned to the plaintiff, as trustee, an existing lease of said land; the rents to be applied in payment of taxes, and interest on said mortgage and trust deed indebtedness. F. R. Lawlor was at that time...
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