Johnston v. McPherran

• Decision Date: 21 October 1890
• Citation: 47 N.W. 60,81 Iowa 230
• Parties: JOHNSTON v. MCPHERRAN ET AL.
• Court: Iowa Supreme Court

81 Iowa 230

47 N.W. 60

JOHNSTON

v.MCPHERRAN ET AL.

Supreme Court of Iowa.

Oct. 21, 1890.

Appeal from circuit court, Tama county; C. HEDGES, Judge.

Plaintiff brought actions to foreclose two mortgages executed by John A. McPherran, by his attorney in fact, A. S. McPherran, to secure certain promissory notes of John A. McPherran. The first mortgage is to the Ætna Life Insurance Company, dated June 4, 1872, on the N. E. 1/4 of section 36, township 85, range 15, and N. W. 1/4 of section 31, township 85, range 14, Tama county, which note and mortgage were assigned to appellee. The other mortgage is to appellee, dated December 13, 1876, and is upon said N. W. 1/4 of section 31. John A. McPherran was served by publication, and, failing to appear, defaults were entered, and judgments rendered against the land. Appellants, A. S. McPherran and Mary J. McPherran, having been made defendants as claiming some interest, appeared and answered claiming a homestead in said N. W. 1/4 of section 31, and contesting the amount due upon the mortgage notes. The cases were consolidated, and after trial had decree was entered against appellants, from which they appeal. The further facts necessary to be considered appear in the opinion.Cald well & Drahos and Stivers & Strong, for appellants.

C. B. Bradshaw and E. C. Ebersole, for appellee.

GIVEN, J.

1. Appellee moves to strike parts of appellants' abstract, wherein certaindocuments and depositions are set out as having been offered in evidence, on the grounds that the same are not sufficiently identified. The transcript of the reporter's notes shows that documents were offered and identified by exhibit marks, and that two depositions of John A. McPherran were read in evidence. Attached to this transcript are documents bearing exhibit marks identical with those called for in the transcript, and two depositions of John A. McPherran entitled as in these cases, and filed in the office of the clerk. The transcript also contains a copy of the judge's certificate to the original report, in short-hand, certifying “that the same, together with the documentary evidence therein referred to, contains all the evidence offered.” Such identification was held sufficient in Way v. Council, 76 Iowa, 741, 39 N. W. Rep. 879. The documents and depositions set out are identical with those in the transcript, and there is no reason to doubt that they are the same that were offered in evidence. Appellee's motion to strike is overruled.

2. The facts relating to the question of homestead are these: September 10, 1870, A. S. McPherran, then unmarried, was the owner of the lands in question. At that time, and in consequence of some trouble, the nature of which does not appear, he deeded the lands to his brother, John A., without consideration, and with the understanding that John A. would reconvey whenever requested. At the same time John A. McPherran executed a power of attorney to A. S. McPherran, authorizing him to sell, lease, mortgage, and otherwise fully control, the land. The deed was recorded September 29, 1870, and the power of attorney in May, 1872. In March, 1871, appellants intermarried, and soon thereafter commenced improving the quarter in section 31 by erecting a dwelling on the north-west 40 thereof, into which they moved. In June, 1872, A. S. McPherran, by virtue of his power of attorney from J. A. McPherran, executed the notes and mortgage to the Ætna Insurance Company, and on December 13, 1876, by virtue of the same authority, executed the mortgage to appellee. Some time in 1874 or 1875, John A. McPherran executed a quitclaim deed to A. S. McPherran for said N. W. 1/4 of section 31, which deed was never placed of record, nor disclosed to the public, or to appellee. On December 15, 1876, appellants joined in a deed for the...