Webster v. McCollough

Day, Oh. J. — I. On the 19th day of June, 1871, the defendant, Elizabeth MeCollough, executed to John Webster, her father, her promissory note for $1,147, payable in nine months, with interest from date at ten per cent. The plaintiff alleges that about the date of said note the decedent, John Webster, sold and conveyed to the said Elizabeth MeCollough one hundred and twenty acres of land, subject to certain liens [497] thereon, and that the note was executed as the balance of the purchase money over and above the amount of said lien. The defendant, Elizabeth McCollough, admits that she purchased of her father the lands referred to, and assumed the payment of certain liens thereon, and that she executed her note for $1,147, which was the amount which her father had paid on said land, but she alleges that the entire consideration for the conveyance of said land was the assumption of certain liens thereon, and her agreement to maintain her father and mother as long as they should live, and that the note was executed simply as a. security for said agreement. The defendant farther alleges that she has fully performed this agreement by maintaining both her father and mother until the time of" their death. We need not determine whether such an agreement as that relied upon by defendant could be shown in order to defeat the note. In our opinion, the evidence does not establish the existence of such contract. If such agreement can be established at all against the note, it must be established by evidence clear and satisfactory. There are many circumstances in the case inconsistent with such contract. The contract between John Webster and the defendant, Elizabeth McCollough, was reduced to writing by the defendant’s son, then nineteen years of age, at the dictation of the defendant’s father and brother, and was read over to her before she signed it. In this contract she agrees to pay off a mortgage held on said property by John Throckmartain, and to pay to John Webster all money due him on said property. This can refer to nothing else than the $1,147, which, it is conceded, John Webster had paid upon the purchase of said land. When John Webster died, the defendant gathered up his papers and handed them to the plaintiff before he was appointed administrator, telling him to take' care of them, as they would have to be given account of. These papers included the note in question. She did not then make any suggestion that the note was not to be paid. On the 19th of [498] August, 1879, the defendant made out an account against the estate of John Webster, deceased, in which, among other items, she claimed $850 for maintaining her mother from December' 12, 1871, to November 18, 1873, in which she stated the above amounts were to be “credited on my note held by the administrator at the date of payments.” This account is inconsistent with the claim that defendant was to keep her parents as part consideration of the land. It is not practicable to review or refer to all the circumstances which have had more or less weight in bringing us to the conclusion we have reached. It is sufficient to say that, upon a separate and independent reading of the evidence in the case, each member of the court has come to the conclusion that the evidence does not sustain the position of the defendant upon this branch of the case. II. In the contract of purchase, the defendant agreed to pay off a mortgage held on said property by John Throckmartain, and also to pay John Webster all money due him on the property. When the jm’ties came to the execution of the conveyance, the defendant for the first time discovered that there was a mortgage to Lucas county on said land, executed by one David Mercer. This the defendant was induced to agree to pay, and to accept a conveyance subject to said mortgage. On the 29th day of January, 1871, Elizabeth McCollough paid off this mortgage by giving a new note and mortgage. She claims that her father agreed to reimburse her this amount, and we think the evidence sustains her position. The conveyance, subject to the mortgage discharged John Webster from liability upon his covenants of warranty, but not from his independent agreement to reimburse this sum. In addition to the credits allowed by the court, the defendent is entitled to a farther credit on account of this mortgage, in the sum of $364. [499] , , 1. VENDOR'S revision:6Ifoilows lana. [498] III. It is claimed that the plaintiff is not entitled to a [499] vendor’s lien for the sum found due. The contract of purchase was made and the note was executed on the 19th of June, 1871. The rights of the parties are g0verne(j hy the Revision of I860.' That the vendor of real estate was entitled to a lien for unpaid purchase money under the provision of the Revision, see Johnson v. McGrew, 42 Iowa, 555; Jordan v. Wimer, 45 Iowa, 65. It appears from the evidence, however, that the defendant, Elizabeth McCollough, was the guardian of the other defendants, her children, and that in the purchase of the land she used about $1,300 of their money, and that in 1880 she conveyed the land in question to her children in settlement for their money which she had used. The defend! ant insists that the vendor’s lien cannot be enforced against them. The evidence shows, however, we think, that they had knowledge, when they accepted the conveyance,-both of-the existence of the note in question, *and that it had not been paid. Under these circumstances the lien may be enforced against them. See Jordan v. Wimer, supra. 2._; waiver of" . Finally, it is insisted that John Webster waived his vendor’s lien by retaining an interest in the land. The contract shows that it was agreed’ that John Webster should reside on the premises during .his life time, but the conveyance contains no reservation of any interest in the land. The case does not fall under the principle of Fish v. Howland et al., 1 Paige’s Ch. Rep., 20, cited and relied upon by the defendant. The decree will be so far modified as to be reduced to $1,095.67. In ail other respects it will be affirmed. The appellee will pay the costs of the appeal. Modified and affirmed.