Obrázky stránek
PDF
ePub

braska Mortg. Co. 92 Kan. 272, 52 L.R.A. (N.S.) 877, 140 Pac. 855, Ann. Cas. 1916B, 865; Davidson v. Coon, 125 Ind. 497, 9 L.R.A. 584, 25 N. E. 601; 27 Am. & Eng. Enc. Law, 2d ed. 203; Zinkeison v. Lewis, 63 Kan. 590, 66 Pac. 644; Hofman v. Demple, 52 Kan. 756, 35 Pac. 803; Young & Co. v. Ward, 115 Ill. 264, 3 N. E. 512; Stouffer v. Harlan, 68 Kan. 135, 64 L.R.A. 320, 104 Am. St. Rep. 396, 74 Pac. 610; Pioneer Sav. & L. Co. v. Providence Washington Ins. Co. 17 Wash. 175, 38 L.R.A. 397, 49 Pac. 231; Strong v. Garrett, 90 Iowa, 100, 57 N. W. 715.

Two estates do not merge unless it is the intention of the holder that they merge.

19 R. C. L. 485; 21 C. J. 1037, § 238; Vannice v. Bergen, 16 Iowa, 555, 85 Am. Dec. 531; Barnes v. Camack, 1 Barb. 392; Hilliard, Mortg. 307; Gray v. Nelson, 77 Iowa, 63, 41 N. W. 566; Kilmer v. Hannifan, 113 Iowa, 281, 85 N. W. 16; Smith v. Swan, 69 Iowa, 412, 29 N. W. 402; Fordyce v. Hicks, 76 Iowa, 41, 40 N. W. 79; Moore v. Olive, 114 Iowa, 650, 87 N. W. 720; Linscott v. Lamart, 46 Iowa, 312; Patterson v. Mills, 69 Iowa, 755, 28 N. W. 53; Byington v. Fountain, 61 Iowa, 512, 14 N. W. 220, 16 N. W. 534; Zuege v. Nebraska Mortg. Co. 92 Kan. 272, 52 L.R.A. (N.S.) 877, 140 Pac. 855, Ann. Cas. 1916B, 865; Williams v. Bricker, 83 Kan. 53, 30 L.R.A. (N.S.) 343, 109 Pac. 998; New v. Smith, 94 Kan. 6, L.R.A.1915F, 771, 145 Pac. 880, Ann. Cas. 1917B, 362; Bowlin v. Citizens Bank & T. Co. 131 Ark. 97, 2 A.L.R. 575, 198 S. W. 228; 39 Cyc. 246; Moor's Estate, 198 Pa. 611, 48 Atl. 884; 2 Washb. Real Prop. 6th ed. § 1484; Asche v. Asche, 113 N. Y. 232, 21 N. E. 70; Watson v. Dundee Mortg. & T. Invest. Co. 12 Or. 474, 8 Pac. 548; Mason v. Rhode Island Hospital Trust Co. 78 Conn. 81, 61 Atl. 57, 3 Ann. Cas. 586.

Fraud is the only thing that will override the necessity of an intention to merge, or the interest of the holder, and appellants are free from fraud.

19 R. C. L. 485; Sherlock v. Thompson, 167 Iowa, 1, 148 N. W. 1035, Ann. Cas. 1917A, 1216; Williams v. Bricker, 83 Kan. 53, 30 L.R.A. (N.S.) 343, 109 Pac. 998.

To defeat the mortgagee's claim permits mortgagor to benefit by his own wrong.

Davidson v. Coon, 125 Ind. 497, 9 L.R.A. 584, 25 N. E. 601; Sullivan v.

Saunders, 66 W. Va. 350, 42 L.R.A. (N.S.) 1010, 66 S. E. 497, 19 Ann. Cas. 480; Asche v. Asche, 113 N. Y. 232, 21 N. E. 70; Dudley v. People's Trust Co. 57 Misc. 230, 107 N. Y. Supp. 930; Citizens' Permanent Sav. & L. Asso. v. Rampe, 116 N. Y. Supp. 597; 21 C. J. 1034, 1035, § 234 and notes, No. 39; Sherlock v. Thompson, 167 Iowa, 1, 148 N. W. 1035, Ann. Cas. 1917A, 1216.

Mr. Fred F. Keithley, for appellees: The mortgage, having been purchased by the owner of the fee, there has been a merger, the debt has been extinguished, and equity will not permit a recovery thereon.

Moore v. Olive, 114 Iowa, 650, 87 N. W. 720; Crowley v. Harader, 69 Iowa, 83, 28 N. W. 446; McDonald v. Magirl, 97 Iowa, 677, 66 N. W. 904; Green v. Turner, 38 Iowa, 112; 26 R. C. L. 1219, § 64; 19 R. C. L. 488, § 280; Byington v. Fountain, 61 Iowa, 512, 14 N. W. 220, 16 N. W. 534; Price v. Rea, 92 Iowa, 12, 60 N. W. 208; Fuller v. Hunt, 48 Iowa, 163; Bolton v. Lambert & Co. 72 Iowa, 483, 34 N. W. 294; Rippe v. Badger, 125 Iowa, 725, 106 Am. St. Rep. 336, 101 N. W. 642; Rakestraw v. Hamilton, 14 Iowa, 147.

Regardless of the intention of the parties, if to keep the mortgage alive is prejudicial to the rights of the mortgagor or third persons, inequitable or conducive to fraud, equity will find there was a merger and deny the right to recover.

Moore v. Olive, 114 Iowa, 652, 87 N. W. 720; Crowley v. Harader, 69 Iowa, 83, 28 N. W. 446; 19 R. C. L. 488, § 280; McDonald v. Magirl, 97 Iowa, 677, 66 N. W. 904; Johnson v. Walter, 60 Iowa, 315, 14 N. W. 325; Fuller v. Hunt, 48 Iowa, 163; Green v. Turner, 38 Iowa, 112; Price v. Rea, 92 Iowa, 12, 60 N. W. 208.

It is not necessary that the two estates be coextensive to have a merger.

Moore v. Olive, supra; Johnson v. Walter, 60 Iowa, 315, 14 N. W. 325.

If required to pay the mortgage debt, the appellees are entitled to subrogation, or to a vendor's lien against the mortgaged land to reimburse them, since the land is the primary fund for the discharge of the mortgage debt.

Fuller v. Hunt, 48 Iowa, 164; Bossingham v. Syck, 118 Iowa, 192, 91 N. W. 1047; Lamka v. Donnelly, 163 Iowa, 255, 143 N. W. 869; Clark Bros. v. Watson, 180 Iowa, 721, 163 N. W. 463; Bradley v. Hufferd, 138 Iowa, 611, 116

208 N. W. 70.)

(— Iowa, — N. W. 814; University State Bank v. Ellison, 2 A.L.R. 242, note; 25 R. C. L. 1373, 1374, § 56.

The right of a surety to be subrogated, even in advance of payment by him, may be protected by decree.

Keokuk v. Love, 31 Iowa, 119; Bankers Surety Co. v. Lindner, 156 Iowa, 486, 137 N. W. 496; 37 Cyc. 383.

An easement cannot exist separate from the dominant estate, and the mortgage cannot be foreclosed against an easement without foreclosing against the land to which the easement is appurtenant.

9 R. C. L. 737, § 5; Carrigg v. First Nat. Bank, 136 Iowa, 261, 111 N. W. 329; Wood v. Woodley, 41 L.R.A. (N.S.) 1107, note; 9 R. C. L. 815, § 71.

No easement was created by the mortgage.

Adams v. Holden, 111 Iowa, 54, 82 N. W. 468; Fitzgerald v. Flannagan, - Iowa, 125 N. W. 995; 9 R. C. L. 735, 2; Forrest Mill Co. v. Cedar § Falls Mill Co. 103 Iowa, 619, 72 N. W. 1076; Washb. Easements, 684.

Evans, J., delivered the opinion of the court:

Though the suit in form is one of foreclosure, its real objective is quite beside the foreclosure mark. The plaintiff in interest is the bond and mortgage company, and for the purpose of our discussion we shall treat it as the sole plaintiff. The real question presented is whether the plaintiff is entitled to recover by foreclosure decree and sale, or otherwise, a certain alleged easement in other lands, as being appurtenant to land already acquired and owned by the plaintiff. The plaintiff is the owner of a certain tract of land described as the west 60 acres of the north half of the southeast quarter of a certain section 25 in Polk county; the same being located near the northwestern corporate limits of the city of Des Moines, and in the near vicinity of Camp Dodge. Adjoining this land on the west is a 24-acre tract described as lot No. 23. This latter tract abuts upon the east line of Beaver road. In this locality Beaver road runs northerly from Des Moines, and somewhat diagonally bearing to the northwest. The following rough sketch will be an

[blocks in formation]

The defendants, Temple, were formerly the owners both of the 60-acre tract and of lot No. 23. They also owned and occupied, as a home, land abutting on the westerly side of Beaver road. In March, 1918, they executed a mortgage for $1,000, covering the 60-acre tract, to the Iowa Loan & Trust Company. This is the mortgage which the plaintiff now seeks to foreclose. The description of the land in the mortgage contained the following clause: "Including an easement as right of way sixteen (16) feet in width along the south side of that part of the northeast (N. E.) of the southwest quarter (S. W.)," etc.

In June, 1920, Temple sold the 60acre tract to Herrold, and took two purchase-money mortgages for $3,000 and $1,500, respectively, there

on.

These mortgages were negotiated to the plaintiff, which acquired its title to the property under foreclosure of such mortgages. These mortgages contained no reference to any right of way easement. The property was acquired by the plaintiff subject to the first mortgage thereon of $1,000 to the Iowa Loan & Trust Company. After acquiring title, the plaintiff purchased this mortgage from the Iowa Loan & Trust Company. Temple's grantee, Herrold, "assumed" the payment of the $1,000 mortgage. The plaintiff did not assume payment thereof, but did take its title subject thereto. The plaintiff brought this action to foreclose the first mortgage and to obtain a per

sonal judgment against the Temples upon the promissory note. It asks no foreclosure thereof as against the 60-acre tract. It prays foreclosure and special execution against the alleged easement alone. The conceded purpose of the proceeding is to acquire a right of way easement over the line A to B, indicated in the plat, and to render said easement appurtenant to the 60-acre tract.

In April, 1921, Temple sold lot No. 23 to Franks, who is now the owner of said tract. Franks is not made a party to this proceeding. Temple filed a disclaimer of all interest in the real estate over which the easement is claimed. He defends the action as against himself, on the ground that the acquisition of the mortgage by the plaintiff, under the facts appearing, operated as an extinguishment thereof as a matter of law; and upon the further ground that the 60-acre tract in the hands of Herrold, and in the hands of plaintiff, as Herrold's grantee, became the primary fund for the extinguishment of the first mortgage, and that the liability of Temple became secondary and in the nature of a suretyship, and that he is entitled to have the mortgaged land applied to the payment of the debt, as a condition precedent to his liability, or that in any event he is entitled to be subrogated to the lien of the mortgage, in the event he is required to pay the same.

The evidence shows that the only egress out of said 60-acre tract to the public highway was over a right of way easement extending to the south from its southwest corner, at point A, to the point C upon the highway. This right of way is 32 feet wide, and is laid upon the west line of the "Litchfield" tract. There never was any actual egress from said tract to the west along the south line of lot 23. No right of way was ever opened or used along such line. Moreover the purported right of way described in the mortgage is and was actually occupied by buildings. Moreover it appears without dispute that the topography of the

ground is such as to render travel impracticable, except through expensive grading.

The foregoing constitute the salient facts from which plaintiff's rights must be ascertained. Much is said in the briefs on the subject of merger of title and mortgage lien. The question is not of controlling importance, except so far as it is incidentally involved in the remedy, if any, to which plaintiff is entitled. If the mortgage in suit created an easement in legal effect, then it was appurtenant to the real estate described in such mortgage. The plaintiff has acquired such real estate. The acquisition of Deeds-ease

title to real estate.

the real estate car- ment-following ried with it every easement appurte

determine title.

nant thereto. See authorities collated in 19 C. J. p. 935. In that event it had no need of a foreclosure. The only person interested in litigating that question with it is Franks. Plaintiff has not made Franks a party to its action. Temple disclaims interest in that issue. Plaintiff urges that Franks bought with notice of its mortgage, and is therefore bound by it. But the valid- Partles-necesity of such a claim sary-action to can only be determined in an action wherein Franks is a party. Whether the mortgage did in and of itself create an easement is a question which plaintiff seems to have taken for granted. That the mortgage provision created an obligation is to be conceded. But it does not follow that it created in and of itself a present easement. The mortgage was a mere lien and security for the collection of a debt. If it should become necessary to resort to the security, all of its provisions could doubtless be enforced to that end. But, until enforced, the mortgagee had no right of possession or entry. He had no right of enjoyment of right Mortgage-of of way or of other easementeasement. If the rights of mortplaintiff, as present holder of the mortgage, is entitled now to convert the mortgage obliga

gagee.

[blocks in formation]

tion into a present easement over this claimed right of way, it is because such relief is essential to its protection in the collection of its debt. Even so, Franks would be a necessary party to any adjudication purporting to establish such ease ment.

From any point of view, therefore, the question resolves itself into one of remedy. To what remedy is the plaintiff entitled in the collection of its debt, and what, if any, are the limitations upon its remedy? The plaintiff prays personal judgment against the Temples on its note, and prays special execution only against the alleged easement. It thereby seeks to withhold from the operation of the mortgage, the 60-acre tract which it has already acquired under the second mortgage. If it may thus eliminate the substantial part of its security, and hold the defendants personally liable for a deficiency judgment, the defendant would thereby be deprived of the benefit of the fund, which was primarily liable for the payment of the debt. One of two things must be true: Either the defendant, as surety, would be entitled to have all the mortgaged property first exhausted; or he would be entitled to pay the debt and to be subrogated to the mortgage lien upon all the mortgaged property. If the surety paid the debt, the plaintiff could have no further interest in the easement. The confusion of plaintiff's attitude is that its real interest in the easement does not arise at all out of its ownership of the mortgage sued on. It arose before it ever acquired such mortgage, and arose out of its accomplished ownership of the 60-acre tract. As such previous owner, it had no right to the easement, unless it was actually appurtenant to the 60-acre tract when it acquired it. If it was such, the plaintiff had no need to acquire the $1,000 mortgage; if it was not such, the acquisition of such mortgage serves no function in that direction.

The law is well settled in this state 46 A.L.R.-21.

[blocks in formation]

junior mortgage.

of such prior mortgage will not avail him as a way of escape from such primary liability of his land. In the absence of some other equitable consideration, it has -effect of purbeen usually held chase under that a purchase, by him, of the prior mortgage, amounts to a payment and extinguishment thereof. Moore v. Olive, 114 Iowa, 650, 87 N. W. 720; McDonald v. Magirl, 97 Iowa, 677, 66 N. W. 904; Price v. Rea, 92 Iowa, 12, 60 N. W. 208; Crowley v. Harader, 69 Iowa, 83, 28 N. W. 446; Byington v. Fountain, 61 Iowa, 512, 14 N. W. 220, 16 N. W. 534; Fuller v. Hunt, 48 Iowa, 163; Green v. Turner, 38 Iowa, 112.

The following excerpts from Moore v. Olive, supra, will be a sufficient indication of our previous holding on this question: "To suffer the purchaser to retain possession and title of the premises under a foreclosure and a sale of the second mortgage, subject to the first, and then to acquire title to the first mortgage, which he had covenanted to respect, would be to sanction a palpable fraud. While not personally bound to pay the first mortgage, he acquires property with which to pay it, and in satisfying the debt he is doing no more than his duty." "Where land is purchased subject to a mortgage, the purchaser is not personally liable for the mortgage debt, but it remains as an incumbrance on the estate. Jones, Mortgages, § 738. After having paid these debts, a court of equity will not aid him in recovering back the money paid. . . . A purchaser under foreclosure of a second mortgage secures nothing but the interest of the mortgagor, and he cannot, by taking an assignment of the first mortgage, set it up as a source of title, or enforce it against the original mortgagor."

The same rule is laid down in 25

R. C. L. 1373, as follows: "Payment of a mortgage by a mortgagor after he has sold his equity of redemption, subject to the mortgage, does not, in the absence of such intention, extinguish the mortgage as between him and the grantee, as the mortgagor in such case has assumed the position of a surety, and, as such, is entitled to be subrogated to the rights of the mortgagee. And, if the mortgaged property be sold at judicial sale, subject to the mortgage, there can be no possible reason why the same principle should not be applied. The purchase price is lessened by the amount of the mortgage, and the purchaser will not be permitted in a court of equity thus

[blocks in formation]

ANNOTATION.

Merger, as to other than intervening lienor, on purchase of paramount mortgage by owner of fee. [Mortgage, § 62.]

I. General rule, 322.

II. Circumstances affecting rule:

a. Title of owner acquired through junior mortgage, 328.

b. Payment of paramount mortgage previously assumed by owner, 329. c. Outstanding dower right, 333.

d. Owner's interest that of cotenant, 336.

[blocks in formation]

E. 854; Forthman v. Deters (1903) 206 Ill. 159, 99 Am. St. Rep. 145, 69 N. E. 97.

Indiana.-Atherton v. Toney (1873) 43 Ind. 211; Artz v. Yeager (1903) 30 Ind. App. 677, 66 N. E. 917; Belk v. Fossler (1912) 49 Ind. App. 248, 96 N. E. 15. Iowa. Patterson v. Mills (1886) 69 Iowa, 755, 28 N. W. 53; Moore v. Olive (1901) 114 Iowa, 650, 87 N. W. 720.

[blocks in formation]
« PředchozíPokračovat »