Dicken v. Morgan
| Decision Date | 12 July 1882 |
| Parties | DICKEN v. MORGAN |
| Court | Iowa Supreme Court |
Appeal from Ringgold District Court.
ACTION to foreclose a mortgage. The defendant for answer avers a partial failure of consideration. The undisputed facts are that the defendant purchased of the plaintiff eighty acres of land; that he paid two hundred dollars in cash and gave his notes for $ 900, and a mortgage upon the land to secure them that he paid the full amount except one note for two hundred dollars. The defendant claims that the price of the land was $ 1,000; that the plaintiff, however, as a part of the trade agreed to procure the establishment of a highway across one side of the land; that in consideration that he would do so the defendant agreed to give him $ 100, making the whole amount, $ 1,100, or $ 900 in addition to the $ 200 paid down he further claims that the plaintiff failed to procure the establishment of the highway.
The plaintiff claims that the purchase price of the land was $ 1,100. He admits that he promised incidentally to procure the establishment of the highway, but denies that any part of the $ 1,100 was the consideration for doing so. He further denies that he has failed to procure the establishment of the highway.
The court found that of the $ 1,100 the sum of $ 1,000 was the purchase price of the land, and the sum of $ 100 was agreed to be paid as the consideration for procuring the establishment of the highway. The court also found that the plaintiff had failed to procure it, and rendered a decree accordingly. The plaintiff appeals.
AFFIRMED.
Laughlin and Campbell, for appellant.
Askren and Spence, for appellee.
OPINION
I.
No exception was taken to the decree, and the defendant insists that without such exception, no objection can be properly raised to it in this court. He cites Roberts v. Cass, 27 Iowa 225. But that was an action at law. The case before us is an equitable action, triable anew upon appeal. In Phipps v. Penn, 23 Iowa 30, a doubt was expressed whether under the Revision an exception to the decree in an equitable action should not be taken to justify a trial upon appeal. But it does not appear to have ever been so held. We see nothing in our present statute upon the trial of equitable actions which requires such exceptions to be taken.
II. We are inclined to think that the evidence sustains the defendant's proposition that the sum of $ 100 of the $ 1,100 was to be paid to the plaintiff as the consideration for his agreement to procure the establishment of the highway. We come then to the question as to whether he performed his agreement. Proceedings were instituted for the establishment of a highway, and they appear to have been regular except in one respect. A petition signed by the plaintiff and twenty-one others was filed in the auditor's office. A commissioner was appointed to examine the proposed road and report. The commissioner made the examination, laid out the road, and recommended its establishment. A day was fixed by the auditor for final hearing. Upon the day fixed it appeared that no claims for damages had been filed and that no objections were made. The auditor accordingly made an order that the road be established. At the next meeting of the board of supervisors the action of the auditor was approved.
Before proceeding to consider the objection urged by the defendant to the validity of the establishment of the road, we will state that according to the abstract the road described in the record introduced in evidence does not appear to be the road in controversy, but a different road, running parallel to the road in controversy and a mile farther south. But no allusion is made to this fact by counsel on either side. They have assumed in their arguments that the road described in the abstract of the record is the road in controversy, and the witnesses seem to regard it as the same road. We have concluded, therefore, that a mistake was made in printing the abstract, that the word southeast was used where the word northeast was intended.
Proceeding upon this theory, we come to the consideration of the objection urged by the defendant against the validity of the establishment of the road. Section 934 of the Code provides...
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