Cahalan v. Cahalan

• Decision Date: 14 May 1891
• Citation: 82 Iowa 416,48 N.W. 724
• Parties: CAHALAN v. CAHALAN.
• Court: Iowa Supreme Court

82 Iowa 416

48 N.W. 724

CAHALAN

v.CAHALAN.

Supreme Court of Iowa.

May 14, 1891.

Appeal from district court, Fayette county; L. O. HATCH, Judge.

Action to recover an amount alleged to be due on two promissory notes. The defendant pleaded a counter-claim. A jury was waived. There was a trial by the court, and a judgment in favor of plaintiff for $46.44 and costs of commencing suit, and in favor of defendant for the remainder of the costs. Plaintiff appeals.D. W. Clements, for appellant.

Ainsworth & Hobson, for appellee.

ROBINSON, J.

The notes upon which the action of plaintiff is founded are for the sum of $500 each, dated January 29, 1883, made by defendant, and payable to plaintiff one year after date. The amount alleged to be due thereon is the sum of $1,020.20. There is no controversy in regard to them. The counter-claim of defendant is founded upon a promissory note made by plaintiff to defendant for the sum of $600, dated September 2, 1882, and payable three years after date. The plaintiff admits the making of the note, but alleges that the total consideration therefor did not exceed the sum of $50; that at the time it was given plaintiff was engaged in the business of selling intoxicating liquors in Fayette county, in violation of law; that the note and a mortgage which purported to secure the note were given to defendant for the purpose of aiding plaintiff to carry on said business in discouraging, retarding, and preventing suits and prosecutions on account of the illegal nature of the business. Defendant denies these claims of plaintiff, and contends that the note was given by plaintiff in pursuance of an agreement to pay defendant for a certain interest in his father's estate, which he had relinquished. The court found in favor of defendant for the full amount of his note against plaintiff.

1. The parties to this action are brothers. It appears that their father died intestate about the year 1875, leaving debts to a considerable amount, and property which included 280 acres of land and some personal property. His wife and eight children survived him. Soon after the father died the widow and heirs agreed that plaintiff should have 120 acres of the land and the larger part of the personal property, and that he should pay one-half of the incumbrances on the land and the unsecured debts against the estate; that another brother should have an equal amount of real property. The heirs conveyed their interest in the land to their mother, and she conveyed to plaintiff 120 acres of the land, and to the other son who was to receive it an equal amount. Although there is some confusion in the evidence, we think the facts stated have been fairly established. Defendant claims that he joined in the conveyance of the land to his mother only on condition that plaintiff should pay him the value of his interest in the estate, and that the note set out in his answer was given in payment of that interest. That claim is denied by plaintiff, who contends that he was not required to pay defendant anything for his interest in the estate; that the interest was of no value; and that the note in controversy was not given for it. Defendant was permitted, against the objections of plaintiff, to testify to an agreement had between himself and his mother, who was dead at the time the testimony was given, by virtue of which he claims he relinquished his interest in his father's estate. The substance of the testimony so given is that plaintiff and another brother named should have the real estate left by the father, excepting a portion to be reserved as a homestead for the mother; that defendant should quitclaim his interest to her; and that he should receive what was right in the end. The ground of objection to this testimony was that it was incompetent, under section 3639 of the Code. That provides that “no party to any action or proceeding * * * shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of...