Ross v. Rees
| Decision Date | 16 December 1880 |
| Citation | 7 N.W. 611,55 Iowa 296 |
| Parties | ROSS v. REES ET AL |
| Court | Iowa Supreme Court |
Appeal from Winneshiek Circuit Court.
ACTION in chancery. There was a decree dismissing plaintiff's petition and granting the relief prayed for by defendant, D E. Rees, in his cross-bill. From the decree dismissing plaintiff's petition he appeals.
AFFIRMED.
L Bullis and O. J. Clark, for appellant.
Cooley Fannon & Akers, for appellees.
I.
The amended and substituted petition, upon which the case was finally submitted for trial, alleges that from 1845 to 1856 Samuel D. and Jacob Rees were co-partners in the milling business in Berkley county, Virginia, under the firm name of S.D. Rees & Co.; that plaintiff became the indorser and surety for said firm to several parties, and judgment was rendered against him upon one claim and his property sold thereon, and two other claims he paid; that the aggregate amount of these claims and interest thereon is $ 24,000; that July 10, 1856, Samuel D. Rees and wife executed to David E. Rees a trust deed conveying certain lands in Virginia, and others in Winneshiek and other counties in this State, in trust to be sold by the trustee and the proceeds to be used in paying the debts of the firm; that the trustee has sold the Virginia lands for $ 40,000 or $ 50,000, which he has converted to his own use; that the Iowa lands he has refused and neglected to sell. The petition prays that plaintiff may be subrogated to the rights of the creditors of the firm whose claims he paid as indorser or surety; that the trustee be required to perform the trust by the sale of the land, and the application of the proceeds to the payment of plaintiff. The answer of the defendant, David E. Rees, denied the allegations of the petition and in his cross-bill he prays for relief by the payment, out of the proceeds of the lands, for services and for sums he had advanced in payment of taxes and for other expenses. As no question is raised upon the cross-bill or the relief granted to the trustee by the decree of the court, no further attention need be given to this branch of the case. After the suit was commenced the plaintiff died, and his living heirs were substituted as plaintiffs. The title of the suit remains unchanged in the abstract before us. We gather from the abstract that the heirs of Samuel D. and Jacob Rees are made defendants. Whether they answered or made default is not shown in the abstract. It is stated in the abstract, as we understand its rather uncertain meaning, that both plaintiff and defendants fail to answer the cross-bill. As counsel on neither side make any question of the rights of the heirs of Samuel D. and Jacob Rees, we presume they thought it unnecessary to present the condition of the pleadings and record, as to these parties, in the abstract. We will, therefore, not consider their rights if they be involved in the case.
II. The case may be briefly disposed of, and the judgment of the court below dismissing the petition of plaintiff may be affirmed, on the ground that the evidence fails to establish any claim held by the plaintiffs against the co-partnership of S.D. Rees & Co. But one witness pretends to give any evidence in support of plaintiff's claim, which is based upon the payment in three separate cases of debts against the firm, for which he was surety as an indorser or otherwise. It is claimed that the lands were sold upon a judgment rendered upon the first claim. But there is not one word of evidence showing that there was a judgment or a sale of the lands...
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Radford v. Folsom
...for us to pass upon this order. We must presume that it was required by the testimony before the court. Counsel for plaintiff insists that [7 N.W. 611] the property still demands the care and attention of the receiver, especially as the decree in the main case has been superseded by an appe......
- Ross v. Rees