
    Sowler v. Day et al.
    1. Contract: mistake: equitable relief. If a person contracts for a certain thing or parcel of property, and unknowingly accepts a different thing or property, it must he deemed a mistake, in respect to which equity will grant relief.
    2. Principal and Agent: knowledge oe mortgage. A party who relied upon another to take a mortgage and see that the title to the property was good, in that respect, made him an agent, and knowledge by the agent of a preexisting mortgage would bind the principal. /
    
      Appeal from Cass District Court.
    
    Saturday, April 22.
    Action to reform and foreclose a mortgage. The relief asked was granted, and the defendant, Tetzer, appeals.
    
      A. 8. Chu/rchiTl, for appellant.
    
      Hopper & Willard, for plaintiff.
    
      Temple da Phelps, for R. W. Day.
    
      J. T. Hanna, for Thos. Archer.
   Seevers, Oh. J.

The defendant, R. W. Day, made a written application to J\ B. Watkins & Co., who were described therein as his agents, for the purpose of procuring a loan on certain real estate owned' by Day. The real estate was described as being in the northwest quarter of section 28, town. 14, range 35. The extent of the improvements and value of the land was stated with particularity in the application, which was verified by Day. Attached to, and forming a part thereof, was the affidavit of Isaac Dickerson, in which he stated he was well acquainted with the premises and the same were worth $3,600, exclusive of perishable improvements. The plaintiff, through Watkins & Co., loaned Day, $1,100 on five years time, and the same becomes due in 1883, to secure wbicb Day executed a mortgage to the plaintiff, and tbe petition states it was tbe intention of Day to mortgage tbe land described in tbe application, but that through tbe error of tbe person who drafted tbe biortgage tbe real estate therein was described as being in tbe northeast quarter instead of tbe.northwest quarter of section 28, town. 74, range 35, “as it should have been, and was intended, by all parties therein concerned.” After tbe execution of tbe mortgage, wbicb was duly recorded, Day conveyed tbe land owned by him in said northwest quarter to tbe defendant Archer, and warranted tbe title, except “as to a certain mortgage given by me in favor of J. B. Watkins & Co. for “$1,100 same due in 1883.” It should be stated that in tbe application, Day stated be desired to obtain a loan for tbe amount and length of time above stated. Archer, in consideration of $500, conveyed by quit-claim to tbe defendant, Harriett Hudspeth, and she execnted a mortgage thereon to Yetzer. It is alleged in tbe petition that each of said parties bad notice of tbe plaintiff’s mortgage. Day answered tbe petition and admitted all tbe allegations thereof to be true, except as to the knowledge of Yetzer, as to wbicb be bad neither knowledge or information. Archer and Yetzer denied all tbe allegations, and tbe defendant,' Hudspeth, was defaulted. Tbe court found tbe allegations of tbe petition to be true, and as none of tbe defendants have appealed, except Yetzer, the finding must be deemed correct as to all except him.

I. Counsel for tbe appellant insist tbe evidence fails to establish that Day intended to mortgage or that tbe plaintiff sllPPOse<i or believed she was getting a mortgage 011 the land in the northwest quarter of section 28, town. 74, range 35. Day testified be intended to mortgage tbe land aforesaid and supposed be bad done so. There is no evidence tending to show otherwise, but much to confirm tbe evidence of Day. So far, therefore, as be is concerned, tbe mistake is clearly established. But it is- said, tbe mistake must be mutual; this will be conceded. Watkins & Co. reside in Kansas; where the plaintiff resides we are not advised. The evidence fails to show that either of them had any knowledge of the land except what was disclosed by the application.

That neither of them knew of the mistake, and that Day had no title to the land described in the mortgage, must be conceded, for if they had, undoubtedly, they would not have accepted the mortgage.

The loan was made upon the belief Day owned the land described in the mortgage, and that it was the same as that described in the application. This must be so, for there is no other evidence tending to show any other tract of land was contemplated. If a person contracts for a certain thing or parcel of property, and unknowingly accepts a different thing or property, this must in the nature of things be deemed a mistake, as to which equity will grant relief. The mortgage the plaintiff expected and contracted for when she made the -loan, based on the application she did not get. Now, in the absence of evidence to the contrary, what inference should be drawn? Either that she knowingly accepted something she did not contract for, as to the value or ownership of which, she had no knowledge, or that she accepted it by mistake. The latter, we think, because such an inference is in accord with a settled and universally acknowledged • business principle. It is said the mistake in drawing the mortgage has not been established. We think it has, when both parties thereto supposed and intended a different parcel of land to be described therein. If the mis-description was the fraudulent act of the draftsman, it nevertheless was as between the parties, a mistake. But there is no evidence tending to show fraud, and it cannot be inferred.

II. The remaining question is, did Tetzer have notice of the mortgage and of the mistake. He testified he did not, arL<^ ke dkl not employ anyone to act for him in taking the mortgage. We think Mr. Tetzer use¿ -¿he term “employ” in the sense that he did not agree to pay anyone to act for Mm. But still we tMnk Dickerson was Ms agent, and that he is bound by the knowledge of suck agent.

Dickerson is a member of a firm of land agents and abstractors, and suck firm was employed to make out an abstract for one Newcomb. In doing so it was discovered Day bad given the plaintiff a mortgage on Newcomb’s land, instead of that, described in tbe application to which the affidavit o'f Dickerson was attached. The latter, therefore, was charged with notice of the land Day desired to mortgage, and he was asked, when on the stand as a witness, whether he supposed Day “intended to mortgage Newcomb’s land.” His reply was “I had good reason to suppose it was a job set up by Day and - Hopper, either on Newcomb or the loan company.” If Dickerson had inquired of Day he would have ascertained it was not a “job” but a mistake, and such inquiry he was bound to make. Nor are we willing to admit, if he had good reason to suppose Day had committed a fraud on the plaintiff or loan company, that he was justified in aiding anyone to reap a benefit from such fraud.

Dickerson having full knowledge of the mortgage and of the mistake or fraud on the part of Day, and suggested to Hudspeth to purchase the same land intended to be mortgaged of Archer. Hudspeth did so, paying $500 for it, which Dickerson testified was worth at the time $1,800. Dickerson obtained the $500 so paid from Yetzer for Hudspeth, and the latter executed a mortgage therefor and included therein certain other indebtedness to Yetzer. The latter had no knowledge of the land, its value, or title. He relied on Dickerson to see that the title was good and the execution of the mortgage. In this respect, Dickerson was the agent of Yetzer, and the latter is bound by the knowledge of the former. This case is almost identical with that of Jones v. Sawford, 21 Iowa, 217. As the judgment below must be affirmed it is unnecessary to determined the motions filed by the appellee.

Aeei-rhed.  