Kenworthy v. Merritt

Opinion by

Hoyt, Associate Justice.

In an action brought to foreclose a mortgage given to secure certain notes executed by the defendants, an answer was interposed alleging certain facts, which, briefly stated, were that said notes and mortgage were given in payment for a piece of land bought by defendant, Mary E. Kenworthv, of the plaintiff.

That at the time of the sale of such land, plaintiff made and delivered his own deed therefor to said defendant; but that, as he had a wife who had a dower interest in said land, it was agreed that said sale should not be considered complete until another deed should be executed by plaintiff, in which his wife should join; and that plaintiff agreed to procure the execution of such additional deed within one year; and that said notes and mortgage were made and delivered to plaintiff conditionally, and not to take effect and be in force until the execution and delivery of such second deed; and that if such deed was not executed within said one year, that the said notes and mortgage should be void and of no effect. That upon the delivery of said first deed and the said notes and mortgage, the defendants went into possession of the premises, and had made improvements thereon, and were still in possession thereof. That said second deed has never been executed, though more than the said one year had elapsed and the said answer, by way of relief, asked that plaintiffs’ complaint be dismissed, and that they have judgment for one thousand dollars damages.

It was not alleged in said answer that the evidence of said conditions existed other than in parol.

To this answer the Court below sustained a demurrer, and this is the particular error which the defendants allege.

The notes upon which the action was brought provided that the interest thereon should be paid monthly in advance; and it is claimed that the contract set up in said answer, which in effect might postpone any payment on said notes for a year, would change the terms thereof, and therefore not be competent to be shown by parol; and that therefore such answer was bad ; and we are of the opinion that there is much force in their position: but as we think that all the facts alleged in the answer (if said conditions had been alleged to have been in writing), would constitute no defense to plaintiffs’ action, we do not now decide as to whether or not the alleged conti’act was one which could have been shown by parol.

Defendants, by their said answer, admit that they received certain title from the plaintiff, and that they are in possession of the premises thereunder, and that the notes and mortgages were given for the purchase price of said land; and without in any way offering to reconvey the title so obtained from plaintiff, or to surrender to him the possession of the premises, they seek to set up in a Court of Equity the conditional contract above stated, to defeat plaintiffs’ entire action.

For them to do this would, in our opinion, be a clear violation of the rule, that he who seeks equity must do equity; and the Court cannot, therefore, allow them to avail themselves of such conditional contract, unless they had first done all they ' could to place all parties in the same situation as when the contract was made, and had so alleged in their answer.

The demurrer was properly sustained, and the judgment rendered in the Court below must be affirmed, with costs.

Let the cause be remanded, with instructions to the Court below to carry into effect the judgment heretofore rendered therein.