OPINION
BECK
CH. J.
The
original petition alleges that P. Loughridge executed an
instrument in writing in the following words:
"OSKALOOSA
IOWA, March 10, 1870.
"On
condition that the line or track of the Central Railroad of
Iowa substantially as now located, is finished from Albia to
Oskaloosa, and the same operated on or before the 15th day of
November, A. D. 1870, I promise to pay said Central Railroad
Company of Iowa on or before the day aforesaid, five acres of
timber, valued at twenty-five dollars per acre, with ten per
cent interest from maturity.
"When
paid, this will entitle me to stock in said company. A
failure to complete and operate said road by the time above
stated will render this note void.
"P.
LOUGHRIDGE."
It is
alleged that the conditions of the note were fully performed,
and the plaintiff is the owner thereof; that
the maker is deceased, and defendants are his administrators
and heirs, and that P. Loughridge died seized of certain
lands described in the petition. The relief asked is that a
decree be entered setting apart to plaintiff five acres of
land of the value named in the contract sued upon.
An
amended petition shows that when P. Loughridge died the
instrument sued upon was in dispute and litigation, and not
in the hands of plaintiff's assignor, and that such
litigation was not settled until the
time for filing claims, as provided by law, had expired; that
plaintiff's assignor, as soon as possession of the note
was obtained, presented it to the administrator, and demanded
a conveyance of the land, which was refused, and thereby the
claim was converted into a money demand. The amended petition
asks that plaintiff be allowed to prove up his claim against
the estate, and the administrator be ordered to pay the same.
A demurrer to the petition as amended was sustained.
An
amended petition was then filed, which, as it was
successfully assailed by demurrer, must be set out in full.
It is as follows:
"The
plaintiff, amending his petition, states that Poultney
Loughridge died on the day of November, 1874, and that, and
at and prior to the death of said Loughridge, the note or
contract sued upon belonged to the Iowa Valley Construction
Company.
"That
said not or contract, at the time of the death of said
Loughridge, was in the hands of Seevers & Cutts, attorneys at
law, at Oskaloosa.
"That
said note or contract was one of a large number of similar
contracts in the hands of said Seevers & Cutts, who had been
collecting the same for the use and benefit of said Iowa
Valley Construction Company, and for the use and benefit of
said Seevers & Cutts; the said Seevers & Cutts holding the
same as collateral to secure an advance of ten thousand
dollars, by them made for the use and benefit of the Iowa Central Railroad Company and the Central Railroad
Company of Iowa and the said Iowa Valley Construction
Company.
"That
shortly prior to the death of the said Poultney Loughridge a
controversy arose between F. W. H. Sheffield and others as to
who was the proper person to represent the said corporation
the Iowa Valley Construction Company, the then owner of the
said notes.
"That
the said Seevers & Cutts, owing to said controversy, ceased
to make any efforts to collect the said notes, and suit for
the possession of the same was brought against said Seevers & Cutts in the Circuit Court of Mahaska county, Iowa. A demand
was made upon said Seevers & Cutts for a list of said notes
and contracts uncollected, and said Seevers & Cutts informed
the plaintiff in said action that they had been requested, by
the opposing parties, not to give any information in relation
thereto until after the determination of said suit against
the...
