Home Savings Bank v. Heizer

205 N.W. 467, 200 Iowa 793

• Court: Supreme Court of Iowa
• Decided: October 27, 1925
• Status: Published

Opinion

Vermilion, J.

The action is in equity, to foreclose a real estate mortgage securing three notes- aggregating $4,950. The notes are renewals of a note originally given by the appellants for stock in the American Bankers’ Securities Company. The original note was given in 1919, and on September 28, 1920, was renewed by a note secured by mortgage. There appears to have been another renewal; but, be that as it may, on April 1, 1923, the notes and mortgage in suit were executed in renewal of the then outstanding note and mortgage. The original note was taken by the appellee bank as collateral security for a loan to.the American Bankers’ Securities Company, and all the renewals have been so held.

The defense presented was that the original note and the stock subscription for which, it was given were procured by fraud; that the renewals were given before the fraud was discovered; and that the appellee was not a holder in due course. The bank claimed to be a holder in due course, .and that, by renewing the note with knowledge of the fraud, appellants waived any defense based upon fraud in the inception of the original 'note.

The appellant C. B. Heizer was a stockholder in the American Bankers’ Securities Company, prior to the giving of the original note, and was a member of the board of directors of that company in 1920. This situation is relied on by appellee as showing that, when appellants thereafter renewed the notes, they did so with knowledge, or the means of knowledge, of the claimed fraud.

The representations which the evidence tended to show were made to induce appellants to purchase the stock, so far as they Avere shoAvn to be false, were concerning matters of which C. B. Heizer, Avliile serving as a director of the corporation, had the fullest opportunity to learn the truth. Many of them related to matters which it Avas his duty as a director to know. Not only would the most ordinary diligence on his part have disclosed the truth, but a proper performance of his duty as a director AA7ould haA7e sufficiently revealed the facts as to the organization and operations of the company to have put him upon inquiry. We think it clear that he must be held to have AvaÍA7ed the defense of fraud Avhen he knew, or by the exercise of ordinary diligence could have discovered, the truth in respect to the representations made to him, and thereafter repeatedly reneAA?ed his obligation. Farmers & Merch. Sav. Bank v. Jones, 196 Iowa 1071; Grimes Sav. Bank v. McHarg, 197 Iowa 1393; Sullivan v. Gaul, 198 Iowa 630; Anthon St. Bank v. Bernard, 198 Iowa 1345; National Bank of Decorah v. Robison, 199 Iowa 1044; State Sav. Bank v. Deal, 200 Iowa 490.

The Avaiver is conclusive of appellants’ liability on the note, whether the bank was a holder in due course or not. Notional Bank of Decorah v. Robison, supra. We therefore have no occasion to determine that question. The decree is right, and it is— Affirmed.

Favidle, C. J., and Evans and De Graff, JJ., concur.