Hurd v. Gallaher , 14 Iowa 394 ( 1862 )

Weight, J.

It seems that, in March, 1859, Hurd and Bonesteel executed their mortgage to Chandler, upon certain lots, with their appurtenances, in the town of Fairfield. In October of that year the mortgagors sold the said premises to the plaintiff. The mortgage was foreclosed: a special execution issued and levied upon the property replevied in this action. The point in controversy is, whether the mortgage covered this property; or, if it does, in terms, whether there was fraud in so drawing the same as to include it.

By the first bill of exceptions, it seems that Bonesteel was asked this question: “ State whether you were one of the parties who, on the 17th of March, 1859, executed the mortgage (referring to it); and if yea, state what understanding, if any, there was when said mortgage was given, on part of said Chandler, or any one acting for him, and on part of the mortgagors, or any of them, as to the property replevied, and as to whether said property would or would not be embraced in said mortgage.” The witness answered: “I was one of the parties. C. L. Hurd had repeatedly refused to give a mortgage except upon the real estate, as it was my understanding that the property replevied should not be covered by the mortgage.” To this testimony defendant objected: the objection was sustained; and this is now assigned as error.

This ruling was correct. If the testimony was offered to contradict the mortgage, of course it was inadmissible. If offered to explain, then it was properly rejected; for the witness’ understanding that the property should not be covered by the mortgage was of no sort of importance, and especially so when it is remembered that he does not state when he had this understanding, or when it was that Hurd refused to give the mortgage upon anything but the lots. Then, again, this refusal could avail nothing unless made to the mortgagee or his agent. Nor would the witness’ understanding be of any moment unless brought home to the other party to the contract. And, finally, the question calls for what took place at the time the mortgage was given; and the answer is loose and indefinite as to time, and too general and vague to be received to explain the transaction when it was concluded by tbe contract.

II. Darling was tbe agent of tbe mortgagee, and Stubbs tbe attorney who drew tbe mortgage. Plaintiff proposed to show wbat tbis attorney said, or wbat inducements .be held out at tbe time tbe mortgage was executed, to prevail upon tbe mortgagors to sign the same. It does not satisfactorily appear that Stubbs bad any other duty to perform than that of a conveyancer in drawing tbe writings. Darling was the agent, and to what be said there was no objection. Defendant was in no manner bound by wbat the conveyancer said, without more proof of a combination between them than is found in tbe record.

III. This action was commenced in 1859. Tbe verdict was for defendant, and tbe court rendered judgment against plaintiff and bis surety in tbe replevin bond for tbe amount thus returned, with interest from tbe commencement of tbe action. Tbis was rendered in April, 1862. In rendering judgment against the surety, there was error. Jansen v. Effey et al., 10 Iowa, 227. There was no error in allowing interest on tbe value of tbe property from tbe time it was wrongfully taken from the possession of the defendant by tbe writ of replevin! Tbe judgment is reversed as to tbe surety (Comegys), and affirmed as to Hurd, at appellee’s cost.