Fitzgerald v. Flanagan

At some time prior to the year 1874, Timothy Fitzgerald became the owner of the land in question. He had two sons, Ed and John. In the year named Ed married, built a house upon the land, and lived there under an alleged agreement and understanding with his father that he would convey the farm to the two sons. Ed has lived on the land ever since. On March 8, 1880, Timothy Fitzgerald made the mortgage now in controversy to Peter Flanagan. In the year 1884 Timothy conveyed the land by warranty deed to his sons Ed and John, and later John conveyed his interests to Ed, who is the plaintiff here. The deed from Timothy to his sons recites a consideration of $3,000, and the warranty clause therein covenants that the grantor “is well seised of said premises of good, sure, perfect, absolute, and indefeasible estate in the law in fee simple, and that the same are free from all incumbrances whatever except a certain mortgage bearing date the --- day of —-•, 18...” It contains no assumption by the grantees of any incumbrances or any undertaking by them to pay a mortgage indebtedness. The mortgage in suit was, as we have already noted, executed March 8, 1880, and purports to be security for the payment of one promissory note of .Timothy Fitzgerald for $288 due March 8, 1883, with interest at 10 percent. The mortgagor has been dead many years. Peter Flanagan, the mortgagee, survives, but far advanced in years, and his business has been attended to principally by his daughter, who lives with him.

This action was instituted August 25, 1904, to obtain a decree canceling the mortgage .of record as being barred by the statute of limitations and unenforceable against the plaintiff. It is also alleged that the mortgage debt has been paid. In answer defendant denies that the mortgage debt is barred, alleges that it has been revived from time to time by new promises and new acknowledgments of indebtedness, and by way of cross-bill he asked that the lien may be enforced for the payment of said debt. To avoid the plea of statute of limitations to his cross-bill the defendant alleges that, after the conveyance by Timothy Fitzgerald to his sons as aforesaid, the present plaintiff wrote and sent to the defendant, Peter Flanagan, a letter in which he referred to the said mortgage debt in words as follows: “Harpers Ferry, Dec. 21. Mr. Flannagan — Hear Sir: We have got youre money for you. It will be ready for you the fifteent of February. Without Fale. the man that We gott the money from will have the money ready from the first to the 15th of February. From youre Frinds J. & Ed Fitzgerald.” It is further alleged that at a later date said plaintiff wrote and sent another letter to said defendant, in which, again referring to the same indebtedness, he said: “Harpers Ferry, Aug. 3-95. Mr. Flannagan, Friend Peter. I received Notice from Webster a few days ago demanding that money amedatly. I will be able to pay it by the 15 of November and not before So don’t make no costs that is not necessary, Tours truly, Ed Fitzgerald.” It is further alleged that plaintiff at various times wrote other letters to defendant on the same subject, acknowledging the debt and promising to pay the same, but that said writings are now lost and can not be produced. Issue was taken by plaintiff upon the cross-bill.

“ "limitation5 of actions

From this statement it will be seen that the note which the mortgage was given to secure was due March 8, 1883, and that it was barred by the statute of limitations ten years after that date, to wit, March 8, 1893. This action was commenced August 25, 1901, and action on either note or mortgage was barred at that time, unless, as defendant and appellant claims, the obligation 'was renewed by acknowledgment or a new promise to pay or the plaintiff for a good consideration promised to pay the debt and thus continued it in force. An action either on the note or mortgage must, under the laws of this state, be brought within ten years from the time the cause of action accrued. It is a general rule that, if there be no debt, there is no mortgage, and consequently, if action for the debt be barred, an action to foreclose the mortgage is also barred. This is the general rule as to limitation of actions under section 344-7, par. 7, of the Code. Smith v. Foster, 44 Iowa, 442; Clinton Co. v. Cox, 37 Iowa, 570; Brown v. Rockhold, 49 Iowa, 282; Gower v. Winchester, 33 Iowa, 303; Jenks v. Shaw, 99 Iowa, 604, and cases cited. Aside from statutes such as prevail in this state or a rule of law such as is announced by our decisions, to the effect that a mortgage does not create an estate, but is simply a lien incident to the debt, the mortgage security is not extinguished, although the debt be barred. See the following cases: Sturges v. Crowninshield, 4 Wheat. 122 (4 L. Ed. 529); Inge v. Boardman, 2 Ala. 331; Belknap v. Gleason, 11 Conn. 160 (27 Am. Dec. 721160 ( 27 Am.); Birnie v. Main, 29 Ark. 591; Browne v. Browne, 17 Fla. 607 (35 Am. Rep. 96); Crawford v. Hazelrigg, 117 Ind. 63 (18 N. E. 603, 2 L. R. A. 139); Kellar v. Sinton's Ex’r, 14 B. Mon. (Ky.) 307; Duke v. Story, 116 Ga. 388 (42 S. E. 722); Crooker v. Holmes, 65 Me. 195 (20 Am. Rep. 687); Demuth v. Old Town Bank, Rep.85 Md. 315 (37 Atl. 266, 60 Am. St. Rep. 322266 , 60 Am.); Norton v. Palmer, 142 Mass. 433 (8 N. E. 346); Webber v. Ryan, 54 Mich. 70 (19 N. W. 751); Slingerland v. Sherer, 46 Minn. 422 (49 N. W. 237); Cheney v. Woodruff, 20 Neb. 124 (29 N. W. 275); Read v. Edwards, 2 Nev. 262; Demerritt v. Batchelder, 28 N. H. 533; Hulburt v. Clark, 128 N. Y. 295 (28 N. E. 638, 14 L. R. A. 59); Myer v. Beal, 5 Or. 130; Ballou v. Taylor, 14 R. I. 277; Dearman v. Trimmier, 26 S. C. 506 (2 S. E. 501); Irvine v. Shrum, 97 Tenn. 259 (36 S. W. 1089); Fievel v. Zuber, 67 Tex. 275 (3 S. W. 273); Criss v. Criss, 28 W. Va. 388; Cerney v. Pawlot, 66 Wis. 262 (28 N. W. 183); Ball v. Wyeth, 8 Allen (Mass.) 275; Damon v. Deeves, 57 Mich. 247 (23 N. W. 798); Northrop v. Chase, 76 Conn. 146 (56 Atl. 518); Satterlund v. Beall, 12 N. D. 122 (95 N. W. 518); Alexander v. Ransom, 16 S. D. 308 (92 N. W. 418); Richmond v. Aiken, 25 Vt. 324; Booker v. Armstrong, 93 Mo. 49 (4 S. W. 727); Long v. Long, 141 Mo. 352 (44 S. W. 341); Bank v. Simeral, 61 Neb. 741 (86 N. W. 470); Kerr v. Lydecker, 51 Ohio St. 240 (37 N. E. 267, 23 L. R. A. 842); Colton v. Depew, 60 N. J. Eq. 454 (46 Atl. 728, 83 Am. St. Rep. 650); Ellis v. Fairbanks, 38 Fla. 257 (21 South. 107); Conway v. Caswell, 121 Ga. 254 (48 S. E. 956, 2 Ann. Cas. 269); Capehart v. Dettrick, 91 N. C. 344; Casey v. Gibbons, 136 Cal. 368 (68 Pac. 1032); In re Hartranfl's Estate, 153 Pa. 530 (26 Atl. 104, 34 Am. St. Rep. 717); United States v. Trust Co., 213 Pa. 411 (62 Atl. 1062); Camden v. Alkire, 24 W. Va. 674; Foot v. Burr, 41 Colo. 192 (92 Pac. 236, 13 L. R. A. (N. S.) 1210). But in this state, in Arkansas, by a recent statute, in California, in Idaho, Illinois, Kentucky, Minnesota, Kansas, Mississippi (by recent statute), Missouri (by recent statute), Nevada, Texas, and in Wyoming, the mortgage, being considered a mere incident to the debt, is, as a general rule, extinguished when the debt for which it is given is barred by the statute of limitations. See Lord v. Morris, 18 Cal. 482; Allen v. Allen, 95 Cal. 184 (30 Pac. 213, 16 L. R. A. 646); Clift v. Williams, 105 Ky. 559 (49 S. W. 328, 51 S. W. 821); Carson v. Cochran, 51 Minn. 67 (53 N. W. 1130); Duty v. Graham, 12 Tex. 427 (62 Am. Dec. 534); Hurley v. Cox, 9 Neb. 230 (2 N. W. 705); Hill v. Gregory, 64 Ark. 317 (42 S. W. 408); Law v. Spence, 5 Idaho, 244 (48 Pac. 282); Harding v. Durand, 138 Ill. 515 (28 N. E. 948); Hubbard v. Missouri Ins. Co., 25 Kan. 172; Culp v. Culp, 51 Kan. 341 (32 Pac. 1118, 21 L. R. A. 550); Huntington v. Bobbitt, Co., 25 Kan.46 Miss. 528; Balch v. Arnold, 9 Wyo. 17 (15 Pac. 434).528 ; Balch v. Arnold, 9 Wyo.17 ( 15 Pac.434 ).

In some of these states the rule does not apply if the mortgage itself contains a covenant to pay the debt; in others it applies only as between the holder of the mortgage and the original mortgagor; and in still others exceptions have been introduced which will now be noticed. Thus in California it has been held that an action to foreclose a mortgage is not barred by statute, although the debt which it was made to secure could not be enforced against the mortgagor. Union Co. v. Murphy Co., 22 Cal. 620. And in the same state it was held that, when a mortgagor sells the property after making the mortgage, that instrument, as contradistinguished from the debt, is a contract in writing, and not barred, although no'suit could , be brought against the mortgagor. Wood v. Goodfellow, 43 Cal. 185. See, also, Grant v. Burr, 54 Cal. 298. In a Kansas case the debtor conveyed the mortgaged land before the statute had run against the debt, and then left the state. It was held that the statute did not run against the mortgagee in favor of the grantee. Waterson v. Kirkwood, 17 Kan. 9. See, also, Richey v. Sinclair, 168 Ill. 184 (47 N. E. 364). In Texas it has been held that a sale under a deed of trust may be executed, although the right of action on the debt secured thereby is barred. Fievel v. Zuber, 67 Tex. 43 (3 S. W. 273), overruling Blackwell v. Barnett, 52 Tex. 326. Again, in California, it has been held that, although the lien of a mortgage is extinguished by the barring of the debt by the statute of limitations, yet a mortgagor of real property can not, without paying his debt, quiet his title against the mortgagee. Puckhaber v. Henry, 152 Cal. 419 (93 Pac. 114, 125 Am. St. Rep. 75St. Rep., 14 Ann. Cas. 844). While we are committed to the doctrine that, if the debt be barred by statute, the right to enforce a mortgage given to secure the debt is also barred, yet we have held that the creditor need not file his claim with the administrator of a deceased mortgagor, nor with the original debtor’s assignee for the benefit of creditors, nor in bankruptcy proceedings, but may rely upon his security, and enforce it any time before it becomes barred, by the general statute of limitations. See Allen v. Moer, 16 Iowa, 307; In re Windhorst, 107 Iowa, 58.

" ofMfore-Isht closure. In the instant case 'the original obligor and mortgagor is dead, and no action can be had against him; still, if the mortagage is not barred, the fact that no claim was made against his estate, and that the obligation is barred as to him, does not defeat the action . . to foreclose against the present owners of the land. That the holder of a note and mortgage may bring action against the owner of the land without making the original obligor a party is well settled in this state. See Johnson v. Foster, 68 Iowa, 140, and cases cited, as well as those annotated under section 4287 of the Code. So far, it must be conceded that the discussion is largely academic, for on the face of the papers the action is barred, no matter whether it be upon the original note or mortgage or upon both. It is provided by statute, however: “Causes of action founded on contract are revived by an admission in writing, signed by the party to be charged, that the debt is unpaid, or by a like new promise to pay the same.” Code, 3456. And the fundamental inquiry is; May a debt or mortgage be revived under this section by the grantee of a mortgagor?

3‘ rabse'quei[ties' purchasers: personal liability. It will be observed that defendant’s cross-bill is based upon a mortgage and his action is against the present holder of the legal title who acquired the same by mesne conveyances from the maker of the note and mortgage. Timothy Fitzgerald, the maker, . ... . _ has been dead for many years, but neither " , his administrator nor his heirs were necessary parties to the foreclosure. Johnson v. Foster, 68 Iowa, 140, and cases cited under section 4287 of the Code, to which reference is made.

Of course, no judgment can be obtained against the original mortgagor, and no personal judgment against his grantee, unless he assumed and agreed to pay the debt.

The present holder of the legal title is the only necessary party to the foreclosure, and his land may be taken because his conveyance was subject thereto, even though he did not assume -to pay it.

4' veyan'ce°onf property: exception of The testimony shows, as we think, that the mortgage in question was excepted from the covenants or warranty in the deed made by the mortgagor, and this exception qualified all the other covenants. Morrison v. Morrison, 38 Iowa, 73; Sweet v. Brown, 12 Metc. (Mass.) 175 (45 Am. Dec. 243Dec.); Sandwich Co. v. Zellmer, 48 Minn. 408 (51 N. W. 379); Freeman v. Foster, 55 Me. 508; Bennett v. Keehn, 67 Wis. 154 (29 N. W. 207, 30 N. W. 112).

In such cases, even though there be no assumption of the debt, the property is conveyed subject to the mortgage, and is the primary fund from which it should be paid. McConihe v. Fales, 107 N. Y. 404 (14 N. E. 285); Crawford v. Nimmons, 180 Ill. 143 (54 N. E. 209); Comstock v. Hitt, 37 Ill. 542; Howard v. Robbins, 170 N. Y. 498 (63 N. E. 530); Savings Bank v. Grant, 41 Mich. 101 (2 N. W. 1); Dickason v. Williams, 129 Mass. 182 (37 Am. Rep. 316); Wadsworth v. Lyon, 93 N. Y. 201 (45 Am. Rep. 190); Johnson v. Lasker Co., Rep.2 Tex. Civ. App. 494 (21 S. W. 961). The mortgagor remains the debtor and the land is simply security for the debt, and the same rule applies as where the purchase is expressly made subject to the mortgage. Fuller v. Hunt, 48 Iowa, 163; Moore v. Olive, 114 Iowa, 650.

s‘ tfons! who a may plead: ■ of As the grantee who holds the legal title is the only necessary party, the universal holding is that he is in such privity to the original mortgagor that he may plead the bar of the statute. Low v. Allen, 26 Cal. 141; Rawlins v. Rawlins, 75 Ga., 632; McLaugherty v. Croft, 43 W. Va., 270 (27 S. E. 246); Day v. Baldwin, 34 Iowa, 380; Ewell v. Daggs, 108 U. S. 143 (2 Sup. Ct. 408, 27 L. Ed. 682); Paine v. Dodds, 14 N. D. 189 (103 N. W. 931, 116 Am. St. Rep. 674); Lord v. Morris, 18 Cal. 482. If such grantee were a mere stranger, he could not plead the statute, as the right to so plead is generally regarded as a personal privilege. Dunton v. McCook, 93 Iowa, 258.

Having this right, it is optional with the grantee whether or not he will interpose such a plea, and it is not for his grantor to complain. If he has the right to interpose the plea, it logically follows that he should be allowed to waive the statute, which is one of repose in his. behalf, and we think that a grantee from a mortgagor of real estate, the mortgage being of record and a prior lien upon the land, may waive the statute of limitations after action brought, or revive the cause of action before suit is commenced, as provided in section 3456 of the Code. Indeed, this seems to have been the holding of all courts where the question has arisen, no matter what their view as to the effect of the statute in general. See Heyer v. Pruyn, 7 Paige (N. Y.) 465 (34 Am. Dec. 355Dec.); Moore v. Clark, 40 N. J. Eq. 152); Shaw v. Land Co. (Tex. Civ. App.) 62 S. W. 941; Daniels v. Johnson, 129 Cal. 415 (61 Pac. 1107, 79 Am. St. Rep. 123St. Rep.); Foster v. Bowles, 138 Cal. 346 (71 Pac. 494); Clayton v. Watkins, 19 Tex. Civ. App. 133 (47 S. W. 810); Hughes v. Edwards, 9 Wheat. 490 (6 L. Ed. 142); McLane v. Allison, 60 Kan. 441 (56 Pac. 747); Longstreet v. Brown (N. J. Ch.) 37 Atl. 56; Howard v. Windom, 86 Tex. 560 (26 S. W. 483); Neosho Valley v. Huston, 61 Kan. 859 (59 Pac. 643).643 ).

of debt: parol evidence* This exáct question was presented to the Supreme Court of Kansas in McLane v. Allison, 60 Kan. 441 (56 Pac. 747) and it was there held that the grantee of a mortgagor might revive the mortgage or suspend the running of the statute of limitations against an action for the foreclosure of the mortgage lien. The court in its opinion said:

Had the conveyance in this case been made ‘subject to the mortgage,7 the rule above quoted would be applicable, and would be decisive against the defendant in error. However, as before státed, tbe conveyances were not made subject to the mortgage, but nevertheless, as we think, the payments of interest made by the grantees, Anderson and Docking, were a recognition of the fact that the land was subject to the mortgage, and constituted an engagement upon their part to hold the land subject to the mortgage lien. The existence of the mortgage was recited in both deeds, and also in the mortgage of Anderson to the loan and building association, Docking’s cestui que trust, and these instruments were all of record. Docking and the loan and building association were chargeable with knowledge of the fact that Anderson had recognized the land as subject to the mortgage by continuing interest payments upon it after as well as before action upon the note which it secured had become barred; and, with like knowledge that such action was barred, they also recognized the validity of the mortgage as a lien upon the land by making an interest payment upon it. Payments of money made with full knowledge of all the facts are in the nature of estoppels, and bind the persons making them to an admission of the validity of the debt. Railroad Co. v. Tiernan, 37 Kan. 607 (15 Pac. 544544 ).). Upon principle, there can be no difference between a recognition of personal liability for the payment of a debt and a recognition of the existence of a mortgage lien upon land. Though the conveyances in question did not recite that they were made subject to the mortgage, and therefore their acceptance did not constitute engagements to allow satisfaction of the mortgage debt out of the land, the continued payment of interest upon the mortgage debt constituted a binding admission that the land was subject to the mortgage, and an agreement for its payments up to the value of the mortgaged premises.

In Foster’s case, supra, it is said:

Indeed, an acknowledgment of the mortgage was an acknowledgment of the indebtedness secured thereby. It was not necessary that respondents should promise to pay the indebtedness in order to establish a new date for the statute to commence running as to the mortgage. All that was required was a plain and distinct acknowledgement in writing of the existence of the mortgage. Concannon v. Smith, 134 Cal. 14 (66 Pac. 40); State Loan, etc., Co. v. Cochran, 130 Cal. 251 (62 Pac. 466, 600); Chaffee v. Browne, 109 Cal. 218 (41 Pac. 1028). As to the respondents Chnrchhill et al. the plea of the statute of limitations finds no support in the evidence, and the court erred in its finding that it did.

And in Longstreet’s case the court of Chancery of New Jersey said:

The equitable -liability of Mr. Dayton’s lands to relieve the defendant compay’s lands should therefore be considered as sufficient in equity to make the payment by Mr. Dayton to the mortgagee in 1879 a payment for the. benefit and on account of the defendant, and at.its request, and one which the mortgagee .was entitled to receive as protecting her lien up to that time upon all the lands subject to her mortgage. So far as this payment is concerned, the. defendant company has no right to insist that, as against the mortgagee, its lands shall ■ be considered in equity as if the payment had not been made, and as if its lands were at the time of the payment held adversely to the mortgagee. The subsequent .purchaser’s discharge of his equitable 'obligations to the defendant to pay the mortgagee, and thus relieve the defendant’s lands,' can not on any equitable ground be made the basis of barring the mortgagee’s rights against defendant’s lands on the theory that the payment was not made in relief of defendant’s lands; for the defendant’s equitable right to require the primary payment of the lien by the subsequent purchaser carried with it all obligations and admissions necessarily arising from the payment by him as a payment made pursuant to an equitable status -created by 'defendant’s consent, and therefore it must be treated as an acknowledgement of the debt on the part of all those for whom or for whose benefit it was, in equity, .to be considered a payment by reason of this equitable status. See 2 Jones, Mort. section 1198, and cases cited.

The reference to Jones on Mortgages in this last citation is quite appropos. .. In Palmer v. Butler, 36 Iowa, 576, we cited some of these cases with approval, although the exact question here decided was not there involved. Again, it has been held that part payment of a debt resecu'red by ■mortgage made by a grantee of the mortgagor revives the debt so as to toll the statute of limitations in an action to foreclose the mortgage. See Collier v. His Creditors, 12 Rob. (La.) 398; Woodruff v. Albright, 10 Kan. App. 113 (62 Pac. 250); Biddel v. Pugh, 59 N. J. Eq. 480 (45 Atl. 626); Harper v. Edwards, 115 N. C. 246 (20 S. E. 392); Hollister v. York, 59 Vt. 1 (9 Atl. 2); Colton v. Depew, 60 N. J. Eq. 454 (46 Atl. 728, 83 Am. St. Rep. 650St. Rep.); Murray v. Emery, 187 Ill. 408 (58 N. E. 327). It seems, then, to be well established by authority that the grantee of a mortgagor who takes subject to the mortgage may revive or keep alive the debt secured by the mortgage so as to render the mortgage enforceable against him, although perhaps he can not revive the debt so as to make it a personal obligation against the mortgagor! This logically follows, we think, when it is once assured that he may plead the statute in bar of an action to foreclose to which he alone is the only necessary party. But it is said there is no proof that either of the grantees from Timothy Fitzgerald ever assumed, or agreed to pay the mortgage , indebtedness. Concession is made, to establish such an agreement, and such is the holding of the eases. Bowen v. Kurtz, 37 Iowa, 239, and Morrison v. Hogue, 49 Iowa, 574.

There is some testimony of an agreement to pay the mortgage debt at the time the deed was executed, and the letters set out and the other testimony tends to show that the plaintiff recognized the debt as his own or the debt of himself and his brother, and that, they were under an obligation to pay the same. Indeed, there seems to have been no other consideration for the deed save love and affection. But we need not definitely decide this proposition now.

7" veyañces°nexception of mortgage: parol evidence. Again it is contended that there is no showing that the mortgage indebtedness to Flanagan is the one referred to in the deed wbicb we have set out, or that there was any intent to exempt this indebtedness from the covenants of that instrument. In view of .. . . . the recitations m the deed, we thmlc it was competent to show by parol that the mortgage lien in question was exempted from the covenants, or that the grantee in the deed assumed and agreed to pay the same. The deed is not conclusive on either of these propositions. Bowen v. Kurtz, 37 Iowa, 239; Lamb v. Tucker, 42 Iowa, 118; Johnson on Mortgages (6th Ed.) section 750; Harts v. Emery, 184 Ill. 560 (56 N. E. 865); Morgan v. South Milwaukee Co., 97 Wis. 275 (72 N. W. 872). The mortgagee is not a party to the deed in such a sense as that he can not show the true agreement between the parties, although such agreement be not expressed in the deed. Bowen v. Kurtz, supra; Rooney v. Koenig, 80 Minn. 483 (83 N. W. 399). See, also, Foy v. Armstrong, 113 Iowa, 629 (85 N. W. 753) and cases cited; Hart v. Emery, supra; Conover v. Brown, 29 N. J. Eq. 510. It is practically conceded that the mortgage was excepted from the covenants of the deed, so we need not pursue that inquiry further. Having purchased nothing more than his grantor’s equity of redemption, and entered into the possession and enjoyment of the property, he held the same subject to the mortgage, but did not become personally liable for the debt secured. The mortgage could at any time before the statute had run against it be foreclosed and the property taken in satisfaction of the lien. Tichenor v. Dodd, 4 N. J. Eq. 454, and eases cited; Moore v. Olive, supra. He was not such a stranger to the mortgage or to the debt secured thereby that he could not revive the same by a written admission of the indebtedness or a promise to pay.

tions: reviv- or: statute of frauds. 8 same- limita The allegations of the cross-petition are also broad enough to raise the question of the plaintiff’s obligation to pay the mortgage indebtedness upon a valuable consideration passing directly to him. Defendant was pressing plaintiff for payment of the mortgage indebtedness and threatening foreclosure proceedings if the amount secured was not paid. Plaintiff was in possession of the property, and enjoying the income therefrom. He promised by the letters quoted and by others to pay the indebtedness at a given time, to-wit, November 15th, and asked that no costs be made. The extension of time was granted, and no proceedings were instituted upon the mortgage. Indeed, the testimony shows that the note and mortgage were taken out of the hands of an attorney with whom they were left for collection by foreclosure, and no proceedings were commenced until long after the time fixed by plaintiff for payment. Extension of time for a definite period and forebearance to sue or to enforce a lien are each treated as a valuable consideration and sufficient to support a promise to pay. See Page on Contracts, sections 288, 289, and cases cited, among which is Burke v. Dillin, 92 Iowa, 557.

And such a promise is not within the statute of frauds. Barker v. Guilliam, 5 Iowa, 510; Schaafs v. Wentz, 100 Iowa, 708, and Page on Contracts, section 614; Carraher v. Allen, 112 Iowa, 168, Leonard v. Vredenburgh, 8 Johns. (N. Y.) 29 (5 Am. Dec. 317Dec.); French v. French, 84 Iowa, 655. Appellee insists, however, that there is no testimony showing that the letters relied upon were signed by plaintiff or by his authority. It is true that plaintiff denied having written these letters, but the testimony sufficiently shows, as we think, that they were either written by him or by his authority.

9. Same: revivor.Same: revivor. Again, it is said that the revivor would have to be signed by both plaintiff and his wife, because part of the property was their homestead. But upon the theory that the cause of action was revived it was not necessary for the wife to sign. Mahon v. Cooley, 36 Iowa, 479.

10. Same: evidence' Again, it is said that the letters do not sufficiently identify the debt. But parol testimony was admissible to identify it, and there is enough in the record to show that the letters related to the mortgage indebtedness in question. Supporting this view, see First Nat. Bank v. Woodman, 93 Iowa, 668.

Plaintiff claims that certain payments have been made upon the mortgage indebtedness, for which no credit has been given. The burden was upon him to- establish the claim, and in this we think he failed.

Our conclusion on the whole record is that the decree is wrong. We shall not undertake to ascertain the amount due upon the note, and shall remand the cause that this may be ascertained, and a proper decree' of foreclosure entered. Reversed and remanded.