Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

could well be sold under such decree. If such interest had been sold under the first decree and execution it could not be sold again, and such is the extent of the ruling in Poweshiek County v. Denison, 36 Iowa, 244.

It must be remembered there are two modes of redemption, and that they are governed by different principles. One is statutory, under which the redemptioner may redeem by paying the amount of the bid and interest. Dewey v. Tuttle, 44 Iowa, 306. The other is an equity of redemption, which must be exercised before the right to redeem is cut off by a sale or possibly by a decree. In such case the redemptioner must pay the amount of the debt. This was held in Johnson v. Harmon, 19 Iowa, 56, as explained and limited in Dewey v. Tuttle. The equitable right of redemption of the plaintiff was not foreclosed or cut off by the first decree and sale. The statutory right to redeem as to the plaintiff's interest did not exist. If he redeemed at all as to such interest he must pay the whole debt. Not having done so, the redemption made cannot be regarded as sufficient, or as an exercise of the equitable as distinguished from the statutory. The receipt of the redemption money by Black cannot be regarded as an estoppel except to the extent of that which had been sold and in fact redeemed.

Affirmed.

QUIGLEY BROTHERS, Appellees, vs. MARTIN DUFFEY, Appellant.

Filed December 11, 1879.

A promissory note, part of the consideration for which is an illegal sale of liquors, is wholly void. Where a note was given for an account, some of the items of which were legal and others, for liquors, illegal, a subsequent account continued, and payment made generally on account, held, in an action on the note and accounts, that the legal items included in the note, and the account made subsequent to the giving of the note, might be considered as one continuous running account, and payments made applied to the items included in such note the same as if no note had been given.-[ED.

Appeal from Clinton district court.

The plaintiffs are grocery merchants, and as such sold the defendant goods from time to time, and charged the same in account. The first item is under date of February 3, 1860, and the last November 12, 1873. On the twenty-fifth day of January, 1870, the defendant executed to plaintiffs his promissory note for $177.65, the same being designed to cover the amount due by account. At that time among the items of account were some for intoxicating liquor, sold in violation

of law. The plaintiffs bring this action to recover upon the note, and upon the account accruing subsequent to its execution; and, in case the note is held void, they ask to be allowed to recover upon all the legal items of account, including those intended to be covered by the note. The petition, however, admits certain payments, which are to be deducted.

The defendant pleads that the note is void by reason of the fact that a part of the consideration thereof is illegal, and he further pleads, as a defence to a recovery upon the legal items of the account intended to be covered by the note, that a right of action upon the same as an account is barred by ths statute of limitations. The case was referred to a referee. He reported in substance that the note was wholly void; that the right of action upon the legal items of the account intended to be covered by the note was barred; and that the payments made should be applied upon the account, which accrued subsequent to the execution of the note. He accordingly found that the amount due the plaintiffs was $11.05. The plaintiffs excepted to the findings and conclusions, and the court sustained the exceptions, set aside the report, and recommitted the case to the referee. The defendant appeals from the order.

Merrell & Howat, for appellant.

Cotton & Wolfe, for appellees.

ADAMS, J. The defendant insists that the referee was correct in his conclusions that the note is wholly void, a part of the consideration being illegal, and that the legal items of the account having accrued more than five years before the commencement of the action, the action thereon was barred. The plaintiffs insist that the note is void only to the extent of the illegal consideration. They further insist that, if it is wholly void, still a recovery should be allowed upon the legal items · of the account intended to be covered by the note, notwithstanding the lapse of five years between the last item and the commencement of the action, because they may be taken with the items of account accruing within five years as constituting one continuous account. To this the defendant replies that at the time the note was given the account for which it was given must be regarded as having been stated, and so that part of the account was severed from the part which followed. That such a note would be wholly void was held in Taylor & Co. v. Picket et al. decided at present term. 3 N. W. REP. 514 (Iowa,) 104.

The question raised in regard to the severance of the

account need not be determined. The payments made are sufficient to extinguish the legal items of the account intended to be covered by the note, provided the payments are applicable thereto. The defendant insists that they are not. In our In our opinion they are. The only testimony in regard to the matter was that of one of the plaintiffs. He testified that he did not give the defendant credit for the payments upon the note because they did not amount to enough to take it up; that he proposed to give the defendant credit on the book account, and the defendant assented. Now, if the note was void, as defendant contends, the whole indebtedness, so far as it was legal, was due upon account. It stood precisely as if no note had been given. The proposition made to defendant to give him credit on the book account must, we think, in the absence of evidence to the contrary, be understood as meaning to give him a credit in the plaintiff's book of account, to be applied under the law governing the application of payments where there is no direction making the payments applicable to specific items. If we had merely the book before us, showing no note given, but simply the items charged to defendant upon one side, and the payments made by him credited upon the other, it would appear, of course, that the oldest legal items must be considered as paid. But the case is not different if the note is wholly void, and if there is no evidence that the credit for payments was not given as directed or assented to by defendant. In such case the application must be determined from what appears upon the face of the book. This being our view, it follows that the report of the referee was properly set aside.

Affirmed.

JAMES F. JOHNSON, Appellee, vs WILLIAM JOHNSON, Appellant.

Filed December 10, 1879.

Evidence in this case held insufficient to show fraud and undue influence in procuring a deed sought to be vacated; that such deed operated as a present disposition of the property and a revocation of the will in disposing of the same. A wife of one of the parties to a personal transaction who is a mere listener, is not incompetent as a witness to such transaction under section 3639, Code. Deed in this case held not open to the objection that it was without consideration, or the result of an unconscionable transaction. Evidence held insufficient to support the contract for annuity claimed by plaintiff.

Appeal from Scott circuit court.

Action in chancery. The original petition alleges that defendant induced his father to execute a deed to him for twenty acres of land in consideration of the payment to plaintiff, a brother, of an annuity of $50 a year, during plaintiff's life; that defendant's agreement to pay the annuity was reduced to writing, and defendant has obtained possession of the paper and refuses to produce it. It was also alleged that, prior to the execution of the deed, the father had made a will devising a part of the land to plaintiff, which was known to defendant; that the father has departed this life, and it was the intention of the parties that the annuity provided for should be secured upon the land. The relief asked is that the annuity be declared a lien upon the land and defendant be required by proper decree to pay the same.

Amendments to the petition were filed alleging that, prior to the execution of the deed, the father executed a will devising the land to defendant on condition that he pay an annuity for life of $50 a year to plaintiff, and also pay $100 each to Margaret R. Stewart and Anna J. Jameson, sisters of defendant, and further, pay all debts owed by the father. It is alleged that defendant with his family went to live with the father, and afterwards, induced him, by undue influence, to execute the deed; that the deed was executed under an agreement of defendant to pay the legacies specified in the will, and that it was intended to be delivered after the father's death, as a more economical manner of carrying out the intentions of the father. It is also charged that the deed and will were in the possession of defendant, who, after the death of the father, secretly burned the will and caused the deed to be recorded, and that he now refuses to pay the sums provided for as aforesaid. It is also alleged that plaintiff is of infirm health, etc., and is dependent upon charity for support, etc. The relief asked is that the deed be declared void, and the will be admitted to probate, and established, and that a proper decree be rendered requiring the payment of the legacy.

Mrs. Stewart and Mrs. Jameson filed a petition of intervention, alleging that the deed was executed to defendant in consideration and upon condition that defendant pay to each of them $100. They ask for judgment for that sum in favor of each, and that the same be declared to be a lien upon the land. The defendant, answering the several petitions of plaintiff and of the intervenors, denied the allegations of each. He alleges that the land was conveyed to him

in consideration of his promise and undertaking to support his father in a comfortable manner during his life, to pay him $100 each year should he desire to visit any of his other children, and after his death to pay all his debts and $100 to the husband of each of his sisters, the intervenors in this action.

The answer alleges performance of some of these conditions, viz.: the support of the father and payment of his debts. Upon the final hearing on the merits a decree was entered granting the relief prayed for in plaintiff's petition and in the petition of the intervenors. The deed was set aside and cancelled on the ground that it was obtained by fraud and undue influence. The will was established and the land was charged with the annuity of $50 a year to plaintiff, and with the legacy of $100 to each of the intervenors. From this decree defendant appeals.

Thompson & French, D. B. Nash and Davison & Lane, for appellant.

Bills & Block, for appellees.

BECK, C. J. 1. The controlling questions in the case, in our opinion, relate to the validity of the deed executed to defendant by his father. Was that instrument executed without fraud and undue influence, and is it a valid instrument? The determination of these questions will dispose of the case. Their resolution, it will be found, rests wholly upon facts. If the deed is a valid instrument, the plaintiff will not be entitled to the relief granted by the decree.

The case is quite voluminous as presented for our consideration, the abstract containing more than 100 printed pages, the argument of defendant more than 130, and the argument of plaintiff more than 50. It will be quite unnecessary for us to discuss the testimony with the minuteness and particularity which we find exhibited in the arguments of counsel. 2. The father of defendant executed the deed in controversy on the seventh of July, 1873. He was advanced in years, being about eighty at the time. He was a man of at least ordinary ability and strength of mind at the time the deed was made; no decay of intellect or absence of the power of will were noticeable in him other than is usual with persons of his age. A few weeks prior to the execution of the deed his wife had died. This bereavement affected his spirits, and, undoubtedly, his health. But we find no evidence authorizing the conclusion that he was not perfectly competent to

« ΠροηγούμενηΣυνέχεια »