Luke v. Koenen

• Decision Date: 10 April 1903
• Citation: 94 N.W. 278,120 Iowa 103
• Parties: J. Y. LUKE, Aministrator, Appellant, v. AEIKO KOENEN AND TRIENTZE KOENEN
• Court: Iowa Supreme Court

94 N.W. 278

120 Iowa 103

J. Y. LUKE, Aministrator, Appellant, v. AEIKO KOENEN AND TRIENTZE KOENEN

Supreme Court of Iowa, Des Moines

April 10, 1903

Appeal from Franklin District Court.--HON. J. R. WHITAKER, Judge.

ACTION in equity to recover on a promissory note, and asking the foreclosure of a bond for a deed. Defense, want of consideration for the note, and a cross petition asking that title be quieted in the defendants. There was a judgment for the defendants, from which the plaintiff appeals.--Modified.

AFFIRMED.

Jno. M Hemingway and J. Y. Luke for appellant.

E. P Andrews for appellee.

SHERWIN J. WEAVER, J.

Taking no part.

OPINION

SHERWIN, J.

The note sued on was given by the defendant Aeiko Koenen on the 10th day of August, 1887. It is for $ 1,200 with interest at ten per cent., and was due August 10, 1892. Its execution and delivery to the plaintiff's decedent, C. C. Cowell, is admitted, but it is claimed that it was without consideration, and given under the following circumstances: That prior to the 25th day of February, 1887, the defendant Aeiko Koenen had become a surety on the note of another for about $ 150; that suit was brought on that note against him, and that on said 25th day of February he deeded the land in question to said C. C. Cowell for the purpose of defeating the collection of any judgment which might be obtained against him, and that at the same time he gave Cowell his note for $ 1,100, without any consideration therefor; that the note in suit here was afterwards given in place of the former one, and was also without consideration. Attached to the note in suit was a written statement over the signature of Cowell, as follows: "Hampton, Franklin County, Iowa August 10th, 1887. I, Christopher C. Cowell, have this day given to Aeiko Koenen a bond for a deed to the south 1/2 of the northwest 1/4 section of 4, Township 92, Range 21, and taken his note for $ 1,200. He honestly owes me $ 800. The remaining $ 400 is to cover a note and mortgage formerly given by Aeiko Koenen on the above described premises. If Aeiko Koenen pays the former mortgage of $ 400 and $ 800 to Christopher C. Cowell, he will be entitled to a deed."

Cowell died in June, 1889, and, as is frequently the case, the courts are called upon to determine the merits of a controversy between the representative of the dead and the living whose claim is based upon transactions with the deceased. Under section 3069 of the Code, and numerous decisions of this court, the note in suit imports a sufficient and valid consideration, and the burden of proof is upon the defendant to show that it was without consideration. This is also true as to the deed from the defendant to Cowell.

Both of the defendants testified as to the giving of the $ 1,100 note, and as to the execution and delivery of the deed to Cowell. If their testimony is considered at all, it furnishes the only evidence as to the note, and shows that the execution thereof and of the deed was one transaction. But these witnesses were both incompetent to testify to this transaction with Cowell, under the Code, section 4604, and their testimony relating thereto cannot be considered.

Rejecting this testimony, there is practically nothing before us sustaining the claim of the defendant as to the note. It is true there is some testimony tending to show that Cowell had taken the deed in question for the purpose of aiding the defendant in defeating a debt which he claimed he should not pay, but this testimony falls far short of proving satisfactorily that...