Sharpless v. Gregg

45 Iowa 649

Opinion

Eqthrock, J.

i. convex-, ishator. It will be observed that this is a contest between the heirs of decedent, and not between the grantees in the deeds and the mortgagees of the property conveyed by the deeds. There is no doubt as to the right of the mortgagees to proceed against the mortgaged property, if they so elect. It appears from the bill of exceptions that they had, at the time of hearing in the court below, commenced actions for the foreclosure of the mortgages.

But this election or right of election, it seems to us, is an immaterial consideration in determining the question here presented. There is no claim made in the record that the estate is insolvent, and the only question to be determined is whether these mortgages are debts of the estate, or whether they are debts of the grantees in the deeds. That they are debts of the estate can admit of no doubt. That they are not the debts of the grantees of the deeds, containing as they do covenants against incumbrances, without exception, it soems to us is equally clear. We think the rights of the parties are to be controlled by the covenants in the deeds, and yet, if the intention of the decedent were an important consideration, what evidence is there of an intention that his children to whom he made these conveyances should pay these mortgages. The payment of interest up to the time he was stricken with insanity rather imports an intention to continue to pay his valid obligations in the form of promissory notes, for which no other person than himself was liable. See Black v. Black, 40 Iowa, 88.

Affirmed.