Burdick v. Wentworth

Seevers, Ch. J. The facts briefly are as follows: On the 10th day of April, A. D. 1857, Elizabeth Ilallett borrowed about two hundred dollars of the defendant, with which she entered the land in controversy, and on the same day conveyed the premises to the defendant; such conveyance was duly recorded on the 4th day of June, A.D. 1857. For the money borrowed, Elizabeth Ilallett gave the defendant her note, payable with ten per cent interest in one year. The, defendant gave to her a bond, whereby he agreed to convey the premises to [442] her upon the payment of the note and all taxes; time being 'made the essence of the contract. The note and bond were both dated the 10th day of April, A. D. 1857. The certificate of entry received by Mrs. Hallett was in the usual form, and .this she assigned to the plaintiff, February 28, A. D. 1858, and authorized him to receive the patent. This assignment was duly filed for record March 3, 1858. On June 5, A. D. 1871, Mrs. Hallett conveyed all her title and interest in the premises to plaintiff. After obtaining the conveyance from Mrs. Hallett, the defendant conveyed the premises to other parties, who subsequently reconveyed to him. i. title: con-patent.6’ ■ I. The plaintiff claims in his petition that he is the owner of the legal title to the premises in controversy, and that no one is in possession thereof. He must recover on the strength of his own title, and not on the weakness of that of the defendant. It is perfectly clear, upon both principle and authority, that the conveyance from Mrs. Hallett to the defendant vested the legal title to the premises in the latter. Page v. Cole, 6 Iowa, 158; Morris v. Goocher, 11 Id., 572. At law the defendant has unquestionably the better and only title to the premises in controversy. 2.___mortgage. II. In equity the bond given Mrs. Hallett by the defendant stamped the conveyance from her to him as a mortgage. This, however, is not a statutory mortgage, nor was Hanetf entitled to all the rights of a statutory mortgagor. The latter is entitled to possession, even after condition broken. The mortgagee can only obtain possession of the premises by a foreclosure and sale. But as the defendant was the owner of the legal title, he could have obtained possession of the premises by an action at law, either before or after condition broken, unless an equitable defense had been interposed. It may be admitted that the plaintiff is the owner of the equity of redemption, but this cannot prevail at law over the legal title; nor at equity without an offer to do equity by paying the indebtedness. While the doctrine is, “ once a mortgage, always a mortgage,” yet there is another rule of at least as much potency: he that asks equity must do equity; and a court of equity [443] never will permit an equitable title to prevail over the legal, unless for the promotion of just and equitable principles. 3.-: —: statute limitations. It is, however, said that the defendant should have foreclosed the equitable mortgage; and that, because he did not do so until the same had become barred by the statute of limitations, his legal title is now worth-, less. "We do not concur in this view, and it is sufficient to say that he is content to let matters be as they are; besides-' this, if his title is barred, so is that of the plaintiff. There can be but little doubt that if the plaintiff, or those under whom he claims, desired to exercise their right of redemption, they should have done so before the right was barred, and that their failure, or that of the defendant, to foreclose, or of both combined, will not be.sufficient to make the equitable title a better title than the legal. Affirmed