Barringer v. Ryder

• Decision Date: 23 January 1903
• Citation: 93 N.W. 56,119 Iowa 121
• Parties: LYDIA E. BARRINGER v. F. E. RYDER et al, Appellants
• Court: Iowa Supreme Court

93 N.W. 56

119 Iowa 121

LYDIA E. BARRINGER v. F. E. RYDER et al, Appellants

Supreme Court of Iowa, Des Moines

January 23, 1903

Appeal from Palo Alto District Court.--HON. A. D. BAILIE, Judge.

ACTION to set aside a deed for want of consideration, and for fraud in its procurement. Judgment for the plaintiff. The defendants appeal.

Affirmed.

B. E Kelly for appellants.

Morling & Davidson for appellee.

OPINION

SHERWIN, J.

The defendant F. E. Ryder was surety on past due notes given by two of the plaintiff's sons to a bank in Ruthven. He alleges in his answer that he entered into an agreement with the plaintiff whereby he was to either pay those notes, or to substitute his individual note therefor, in consideration of which she was to secure him for so doing by a conveyance to him of the land in question, and that it was deeded to him pursuant to such agreement, and after he had executed his individual note to the bank in place of the ones upon which he was surety for the sons. We need not determine whether fraud was practiced on the plaintiff in the procurement of the deed from her, for it clearly appears that, as to the conveyance of her interest in the land, it was wholly without consideration. The plaintiff had no interest in the notes which her sons had given the bank, nor was she in any way legally or morally bound to protect the bank or this defendant, who had become their surety. On the other hand, he, as surety, was legally bound to pay the notes upon the default of his principals; and when he entered into the alleged contract with the plaintiff he was simply agreeing to perform his legal duty, and nothing more, and this furnished no consideration for the conveyance. Ayres v. Railroad Co., 52 Iowa 478; Eastman v Miller, 113 Iowa 404, 85 N.W. 635.

It is contended in argument that it was a part of the alleged agreement that the defendant should refrain from instituting proceedings against his principals for his own security, and that he complied therewith. The evidence does not sustain this claim. When carefully analyzed, it shows nothing more than a threat to do what he had already attempted in that line without results.

II. The land conveyed in the deed is in Wisconsin, and, because the statute of that state was not in evidence, it is said that the court could not determine the plaintiff's dower interest therein. The court found that she had an estate for life in the undivided one-third thereof. Of this the defendant...