Hanks Adm'r v. Van Garder

• Decision Date: 13 July 1882
• Citation: 13 N.W. 103,59 Iowa 179
• Parties: HANKS, ADM'R, v. VAN GARDER
• Court: Iowa Supreme Court

13 N.W. 103

59 Iowa 179

HANKS, ADM'R, v. VAN GARDER

Supreme Court of Iowa, Des Moines

July 13, 1882

Appeal from Allamakee District Court.

ACTION to foreclose a chattel mortgage. The plaintiff, as administrator of the estate of J. C. Cayton, deceased, holds a promissory note drawn for $ 986.73, executed by the defendant to the plaintiff's intestate, and secured by a mortgage on certain stock, grain and farming machinery, and which is the mortgage now sought to be foreclosed. The defendant for answer avers that the note and mortgage were given solely to indemnify the plaintiff's intestate against certain liabilities incurred for him in becoming his surety for indebtedness; and that the liabilities have now been discharged so far as the estate of the plaintiff's intestate is concerned. The court found the allegations of the defendant's answer to be true and dismissed the plaintiff's petition. He appeals.

AFFIRMED.

Burling & Stowe, for appellant.

A. S Powers, for appellee.

OPINION

ADAMS, J.

The plaintiff insists that a portion of the evidence was wrongly admitted. But the case is triable de novo, and we have only to inquire whether the evidence which was properly admitted is sufficient to maintain the defense. The note and mortgage were given in March, 1878. One A. B. Cayton testified that in the winter of 1879 and 1880 he heard the intestate say that he had a mortgage on stock and machinery given him by Van Garder to secure him for signing as surety to one J. N. Smith, one P. W. McLelland and one Nathan Lamborn. It is not shown that more than one mortgage was executed by the defendant to the intestate upon stock and machinery. We think, therefore, that the reasonable inference is that the mortgage referred to by the intestate was the one now in suit.

We come next to inquire whether the indebtedness due Smith, McLelland and Lamborn respectively, has been paid. The Lamborn indebtedness the defendant testifies that he paid himself. The plaintiff insists in argument that the defendant was incompetent to testify to such fact as against the plaintiff as administrator. But while the plaintiff moved to suppress a part of the deposition he did not move to suppress this part, and did not move to suppress any part on the ground that the defendant was incompetent to testify against the plaintiff as administrator. On the reading of the deposition he objected to the part above set out, but only on the ground that it was irrelevant and immaterial, and such objection it is manifest was not well taken.

As to the payment of the Smith notes the defendant testified as follows: "Int. 9. Have you the notes? If so produce them. Ans. I have not got them;...