Bullard v. Bullard

• Citation: 112 Iowa 423,84 N.W. 513
• Parties: BULLARD v. BULLARD.
• Decision Date: 19 December 1900
• Court: United States State Supreme Court of Iowa

112 Iowa 423

84 N.W. 513

BULLARD

v.BULLARD.

Supreme Court of Iowa.

Dec. 19, 1900.

Appeal from district court, Lee county; Henry Burk, Jr., Judge.

Action in equity to have a bill of sale absolute on its face declared to be a chattel mortgage, and for an accounting. There was a decree for defendant, after which the court sustained a motion for a new trial, from which order the defendant appealed. Affirmed.T. B. Snyder and Hamilton & Hamilton, for appellant.

D. F. Miller and W. J. R. Beck, for appellee.

GRANGER, C. J.

The defendant, E. G. Bullard, is the administrator of the estate of James Bullard, who was the original defendant in the suit, and who died pending the motion for a new trial, after which E. G. Bullard was substituted as his legal representative. In May, 1894, the plaintiff made to James Bullard an absolute bill of sale of two stallions, the consideration in the bill of sale being $2,500. This suit commenced in August, 1896, and by the petition it is made to appear that about May 10, 1894, plaintiff agreed with James Bullard for a loan of $1,250, to secure which plaintiff was to execute a mortgage on the two stallions referred to. It then appears that when plaintiff came to execute the mortgage the agreement was so changed that, instead of a mortgage, the bill of sale in question was executed; and it is averred that the agreement was that the bill of sale should stand in lieu of the mortgage, and be treated as such, and that the amount secured thereby was $1,250, instead of $2,500, as expressed in the bill of sale. The answer put in issue the averments of the petition as to an agreement that the bill of sale should be treated as a mortgage, or that the amount expressed as a consideration was less than as shown in the bill of sale. The trial involved the issue of fact whether or not the instrument should be treated as a bill of sale absolute, or as a mortgage securing the sum of $1,250. The district court, on such issue, found for the defendant, and gave judgment accordingly. The plaintiff presented a motion for a new trial, based on newly-discovered evidence, which was supported by affidavits, four in number, in each of which it appears that James Bullard had stated to the affiant, in effect, that he loaned the money to plaintiff, and held the instrument in question as security. These affidavits are met by a counter affidavit by James Bullard in which there is a denial of the statements sworn to. Upon the hearing of the motion the court awarded a new trial, and the correctness of such ruling is the only question for us to determine.

1. Upon the trial of the issues presented by the pleadings, the evidence was in sharp conflict; and it is not to be doubted that the admissions of the defendant, if as shown by the affidavits, would be material and proper for consideration by the court, because they are the admissions or statements of a party against himself. Blake v. Barrett, 61 Iowa, 79, 15 N. W. 845;Allen v. Same, 100 Iowa, 16, 69 N. W. 272. It is urged that such evidence is of a weak and unsatisfactory character. The objection goes to the consideration of the statements as evidence, and not to its admissibility. Appellant seems to think the admissions or statements inadmissible on an original trial unless the defendant should first be put on the witness stand, or his evidence taken on the former trial should be offered by defendant. We do not so understand the rule as applied to a party. See cases above cited....