Houghton v. Allen

McFarland, J. — After a full consideration of this case in Bank, we have reached the conclusion that the judgment of the court below should be affirmed.

The action is brought by plaintiff, Houghton, to foreclose a mortgage executed to him on April 6, 1871, by defendant Allen. The mortgage includes certain land not in contest here; and also lots 6, 7, and 8,—the premises in controversy.

The court below rendered judgment foreclosing the mortgage as to the other land, but refused to include lots 6, 7, and 8 in the decree. From the last-named part of thé judgment plaintiff appeals.

The complaint is in the usual form, and proceeds upon the theory that Allen was the owner in fee of the lots in question. The averments as to those lots are the same as the averments as to the other property included in the mortgage. If the theory of the complaint had been carried out in the judgment, all right of defendant Dresbach in the said lots would have been foreclosed, and as against him the purchaser at the foreclosure sale would have taken an unencumbered fee-simple title.

[104]But Allen was- not the owner of the lots. On the twenty-second day of August, 1870, these lots were owned in fee by John P. Jackson; and on said day Jackson made a written contract with Allen by which he agreed to convey them to Allen on the twenty-second day of August, 1872, provided Allen would pay, him fifty dollars in cash, and one hundred dollars on August 22,1881, and one hundred dollars on August 22, 1882,—the two deferred payments to bear interest at twelve per cent per annum. It was provided that time should be considered as of the essence of the contract; and that if Allen failed or neglected to make either of the payments, Jackson should be wholly released and discharged of any claim at law or in equity for a performance of the contract, etc. Allen paid the fifty dollars, and went into possession. While in possession—and on April 6, 1871—he executed to Houghton the mortgage above referred to, which included these lots. But when the first one hundred dollars became due, Allen failed to pay any part of it, and has totally neglected to pay any part of either of the deferred payments; and Houghton never paid or offered to pay anything on the contract. On the twelfth day of January, 1872, Jackson, for a consideration of $250, conveyed the lots to the defendant Dresbach. The contract between Jackson and Allen was not recorded until July 9,1872; but when Jackson conveyed to Dresbach, Allen, being in default, consented to the conveyance, and to deliver the possession to Dresbach. The deed to Dresbach recited that there had been a con-' tract with Allen, and that the conveyance was made at Allen's request. This was the first notice, so far as it appears, which Dresbach had of the character of Allen's possession.