Cooley v. Osborne

Dj-Y, J. I. One of the grounds of exception to the report of the referee, and of the motion to set it aside, is that the facts reported are contrary to the pleadings. It is now claimed that there is a total variance between the pleadings and the proof. It is claimed that the answer simply alleges that Cooley was to take the mortgage, whereas the defendant introduced evidence, and the referee found that McCann was to foreclose the mortgage, executed by defendant Osborne' to him as surety, and sell the property under the foreclosure, and authorize the sheriff to make a deed to plaintiff; or, that if McCann should buy in the property at sheriff’s sale, that he would execute a deed to plaintiff therefor. The answer alleges that it was agreed between plaintiff and defendants McCann and Taylor that they should foreclose the Osborne mortgage, and by process of foreclosure cut the rights of said defendant Osborne out of said premises; and that Cooley would take the mortgage and pay them the eighty-five dollars and fifty cents paid, and release them from further liability. The allegation that Cooley was to take the mortgage after foreclosure of the same can mean nothing else than that he was to be subrogated to the rights of the mortgagees after sale; in other words, that he should be entitled to the sheriff’s deed. The defense is not pleaded with technical exactness, and, upon motion, might have been required to be made more specific and certain; but there is, we think, no substantial variance between it and the proof and the facts reported bjr the referee. i ioekeree : finding oi fact. ; II. It is claimed that the contract is unilateral and without consideration; that McCann agreed to do nothing, and is nothing in the report of the referee or evidence to show that McCann agreed to procure title and convey the same to Cooley. The referee finds that it was agreed that “McCann would foreclose the mortgage executed by defendant Osborne, and sell the property under the foreclosure, and authorize the sheriff to make the deed to plaintiff; or, if McCann should [531] buy in the property at sheriff’s sale, he should make a deed to plaintiff." This finding clearly shows an agreement on the part of McCann. The finding is not without evidence to support it. This is a law action, and the report of the referee stands as the verdict of a jury. o meStstoacon-" vey' III. It is claimed that the contract testified to by McCann is within the statute of frauds, in that the testimony of this witness tends to establish a verbal agreement on ^Ie P8,1’^ °f Cooley to buy real estate, no part of the purchase money being paid. The case falls within the principle of Bannon v. Bean et al., 9 Iowa, 395, and under the doctrine of that ease the contract found by the referee to exist is not within the statute of frauds. IY. ■ It is urged that defendants have placed it out of their power to carry out the contract alleged in the answer, because they have merged the mortgage in a judgment for eighty-eight dollars, while the mortgage was given to secure the defendants McCann and Taylor from liability upon a note which amounted, principal and interest, at the time of the decree, to two hundred and five dollars. McCann had paid only eighty-five dollars and fifty cents on the note, and could foreclose for no more than that amount. The foreclosure for that sum was in direct accord with the agreement. 3. oontkact: champerty. Y. It is claimed that McCann did not unqualifiedly agree to prosecute the case to a foreclosure, and that if he had done s0 consideration of release from the note and eighty.fiye dollars and fifty cents and interest, the agreement would have been champertous, and could be enforced by neither party. The foreclosure of the mortgage was for McCann’s benefit, and could not furnish a consideration for release from the note and payment of eighty-five dollars and fifty cents. The consideration for that agreement is the undertaking of McCann that upon sale of the mortgaged premises they shall be deeded to Cooley. There is no element of champerty in the agreement as we can see. The referee has found that McCann did agree to foreclose the mortgage [532] and cause the conveyance, upon sale, to be made to the plaintiff. The finding is not without support in the evidence. VI. The referee found that McCann agreed that if he should buy in the property at sheriff’s sale he would make a deed to plaintiff; that he did buy in the property and received a certificate of purchase, and that he tenders‘the same in court for the use of the plaintiff. The evidence shows that McCann bought the property at sheriff’s sale during the pend-ency of this trial, on the 25th day of May, 1878, subject to redemption within one year. Defendants amended the answer and pleaded a tender of this certificate to plaintiff. The referee finds that McCann agreed to deed the property to plaintiff. He has not done so, and, if the property shall be redeemed from the sale, he may not be able to do so. The defendant has not shown a compliance with the agreement which the referee finds he made. The defendants are entitled only to have the action of plaintiff abated until it shall be determined whether the property will be redeemed from the sheriff’s sale. In rendering an absolute judgment against plaintiff the court erred. The judgment is reversed, and remanded for judgment in harmony with this opinion. Reversed.