Potter v. Kennelly , 81 Iowa 96 ( 1890 )

Rothrock, C. J.

The only question to be determined is, was the mortgage altered or changed after its execution« The burden of proving the alleged alteration was on the defendant. Vanhorn v. Bell, 11 Iowa, 465; Warren v. Chickasaw Co., 13 Iowa, 588; Odell v. Gallup, 62 Iowa, 253; Wing v. Stewart, 68 Iowa, 13. The note was for one hundred dollars, borrowed money, and it recites that it is secured by a mortgage upon real estate valued at nine hundred dollars. It appears that the twenty acres, which it was conceded was included in the mortgage, was, at the time the mortgage was made, subject to the lien of a judgment. Indeed, it may be safely held that the twenty acres is inadequate security for the money due. If it was adequate, it is not likely this defense would have been interposed, nor this appeal taken. Parties are not supposed to be involved in litigation for pleasure or pastime.

The loan was made ior the plaintiff by one EL K. Steele, an insurance and loan agent. The defendant was in urgent need of the money. His horses had been levied upon for a debt. Steele testified, as a witness, that defendant offered him the twenty acres as security, and that he refused to take it, as there was a judgment lien that would probably take it, and that the defendant then directed him to make the mortgage on the whole sixty acres, including the forty acres, which is and was defendant’s homestead ; that he ( Steele ) told the defendant he did not care anything about the twenty acres, that the forty acres would be sufficient; but that defendant insisted that all the land should be included in the mortgage. Steele testified that the mortgage was so written, and there has been no alteration made therein, or in the notes since their execution. The defendant relies upon his own testimony, and that of his son, Dennis Kennelly. They were both present when the note and mortgage were signed, and the son signed his father’s name to the note and mortgage by. his direction. Steele testified that the son read them over to the father, and signed his father’s name, as directed. Both the father and son testified that the mortgage did not contain the homestead at that time, and that it was the agreement between the parties that the mortgage was to be'on the twenty acres only.

The cause was tried upon depositions, so that it was presented to the court below precisely as it is in this court. We suppose that the court held that the alleged alteration was established, because there were two witnesses against one ; and if the question were divested, of other facts and circumstances proper to be considered, we might be inclined to concur in this view. But it is to be remembered that the defendant is making an attack upon the integrity of a written instrument, acknowledged and recorded. Not only this, but, to make the defense complete, the defendant’s son thought it necessary to impeach the note by testifying that it had been altered by inserting the value of the land as nine hundred dollars. And then again the fact is to be considered that, if this defense be true, either S. K. Steele, who made the loan, or the plaintiff, committed a felony by the alleged alteration. Steele testified that he looked up the records of the title of the land before he made the loan, and that he told defendant he would not make it on the twrenty acres. Another most important fact is that it is not claimed that either the note or mortgage gave the appearance of having been changed, and surely Steele did not intend to take insufficient security for the money, and he knew, and the fact that this defense was made is strong evidence showing, that the twenty acres is no security. As we view the facts, there should have been a decree for the plaintiff foreclosing the mortgage upon both tracts of land. Reversed.