Zent v. Picken

• Decision Date: 07 October 1880
• Citation: 54 Iowa 535,6 N.W. 750
• Parties: ZENT v. PICKEN.
• Court: Iowa Supreme Court

54 Iowa 535

6 N.W. 750

ZENT

v.PICKEN.

Supreme Court of Iowa.

Filed October 7, 1880.

Appeal from Mahaska district court.

This action was commenced October 10, 1877, upon a promissory note for $500, dated October 17, 1867, and for the foreclosure of a mortgage executed to secure it. The defendant, in his answer and the several amendments thereto, in substance alleges that the note was given in part consideration for the purchase price of eight acres of land, in connection with another tract; that the consideration of the note sued on, to the extent of $150 thereof, was the conveyance to defendant of said eight acres of land; that the plaintiff, in his deed, covenanted that he was seized of said land, and in possession of the same as owner in fee-simple; that plaintiff was never seized of said land, and had no title, claim, lien, or interest therein; that, prior to the conveyance to defendant, the land had been sold for taxes, and a treasurer's deed executed to Pliney T. Sexton & Son; that Pliney T. Sexton conveyed to his son, and he to David C. Cook, who has now full possession of the land; that the defendant received nothing for the note, and has been damaged in the sum of $400.

On the twenty-first day of April, 1880, the cause was tried to the court, who found facts and legal conclusions as follows: “ First. The note in suit was given for real estate, and a part of the real estate, being about eight acres, was sold to defendant by plaintiff for $150, and the purchase money of said tract of land was included in the said $500 note or a part thereof. Second. At the time said note was given the plaintiff executed a deed to defendant, conveying the said tract of land, for the consideration of $150, to defendant, which $150 was included in the said note. Third. That said deed was a special warranty deed, but contained a general covenant of seizin. Fourth. That the plaintiff was not in fact seized of the said eight-acre tract at the time of making said deed. Fifth. That plaintiff had formerly owned a tract of land containing the said amount, and it was the intention of plaintiff to convey the land correctly to defendant, but by mistake the land was not correctly described. Sixth. That the land that the plaintiff intended to convey did not belong to him at the time of the conveyance, the same having been sold for taxes, and a tax deed therefor duly executed, prior to the said sale, to one Sexton; that said tax deed had taken away the title to the said land from the plaintiff prior to the said sale; that the plaintiff had no title to said land intended to be conveyed, nor had he any to the land actually conveyed. Seventh. The defendant never took possession of the said land, nor was he ever evicted therefrom. Eighth. That as a conclusion of law the note was without consideration, to the amount of $150, and should in fact have only been given for $350, instead of $500, the true consideration being only $350. Ninth. That the title has wholly failed, and the said note is without consideration in the said excess over $350. Tenth. That, as a conclusion of law, an allowance of damage of $150, with 6 per cent. interest, would not be adequate compensation for the loss of title, for the reason that the purchase money in the note was drawing 10 per cent. interest, and that in law and equity the note ought to be reduced in amount to $350, instead of $500, at the date thereof. Eleventh. As a conclusion of law, I find that the plaintiff is only entitled to recover the amount of the note, with 10 per cent. interest, computing the said note at $350 from the date of the same. The credits being undisputed, it is ordered that the clerk assess the amount due the said note upon the above basis, taking the original principal as $350, instead of $500, and allowing all credits thereon.” Judgment was accordingly rendered in favor of the plaintiff for $7.94 and costs. The plaintiff appeals.William Loughridge and Williams & McMillen, for appellant.

Crookham & Gleason, for appellee.

DAY, J.

1. The facts found by the court are fully...