Clemons v. Elder

9 Iowa 272

• Court: Supreme Court of Iowa
• Decided: October 13, 1859
• Status: Published

Opinion

WRIGHT, C. J.

There is nothing in the bills or testimony to sustain this decree. That the deed to Gower was made and recorded long prior to the purchase by complainants, is admitted. They state that Elder informed them that the property was entirely free of incumbrance, except the mortgage to Emery; that this was false; that they had constructive, though not actual notice of the conveyance to Gower. Does the fact that the bond from Gower to Elder, for a re-conveyance was unrecorded, render Gower’s deed void and fraudulent, as against complainants ? This is the position of counsel, but upon what ground it can be sustained, we are at a loss to conceive. They had constructive notice of the deed, and that upon its face is absolute. Upon what principle is it, that they can now complain, if it shall turn out, as it has, that though this deed was absolute, it is in equity but a mortgage ? Why is this deed void, because, when the whole transaction is developed, they are given an opportunity to redeem property which apparently was vested absolutely in the grantee? And then Gower had nothing to do with placing this bond upon record. It was Elder’s duty if any person’s, and Gower is not to be prejudiced by such failure. The case of Dey v. Dunham, 2 John. Ch. 182, relied upon by counsel, was reversed in the Court of Errors, (15 John 554,) and turned upon the construction of tbe recording statute of that State. And so with the other cases cited.

The charge that the contract between Elder and Grower was usurious, is not well made in the bills, and taking it all as true, would not entitle complainants to relief, in this respect. There is no prayer asking to redeem upon paying the money actually due; nor any averment that any amount had ever been tendered. In a word, the bill is in no manner adapted, or framed, for relief upon this ground. But without examining in detail what seems to us the very many errors and irregularities in these proceedings, we may mention one, prominent and fatal in its nature. Grower held this title in trust for Elder and the firm of Grower, Bro. & Co. At least this would appear to be the case upon the face of the transaction. The exhibits attached to the bills tend to show however, that as to part of the money, the firm acted as the agent of the party, now sueing upon one of the notes. Whether this is true or not, it is admitted that the notes have been assigned, and that the indorsees have instituted suits to collect the same. One of these suits, treats the transaction between Grower and Elder, as a mortgage, and seeks to have the judgment to be recorded, declared a special lien upon the land included in the deed. And yet notwithstanding that Grower throughout the entire transaction, has been acting simply as trustee in holding this title; and while the firm to which the note was payable, or their indorsees, or both, are the real parties in interest, none of them are made parties. The decree declares the deed void; whether as an absolute conveyance, or as a mortgage in connection with the defeasance, while those interested and almost alone interested in sustaining it, as is shown from the complainant’s own bills, have had no opportunity to defend it.

It is but too manifest that the case was in no condition to warrant the decree, and it will be set aside, with leave to amend, or begin anew.

Decree reversed.