Wier v. Day

• Decision Date: 24 October 1881
• Citation: 10 N.W. 304,57 Iowa 84
• Parties: WEIR v. DAY
• Court: Iowa Supreme Court

10 N.W. 304

57 Iowa 84

WEIR v. DAY

Supreme Court of Iowa, Des Moines

October 24, 1881

Appeal from Cerro Gordo Circuit Court.

ON the 6th day of March 1874, the plaintiff being the owner of certain real estate in Mason City conveyed the same to R. C Mathews.On the 17th day of the same month Mathews conveyed the same property to the defendantC. H. Day, and on the 9th day of August 1876, Day conveyed to Edwin Hamblin.When the property was conveyed by plaintiff to Mathews the same was encumbered by certain tax-liens mortgages and judgments.These liens were beyond the ability of the plaintiff to pay and he conveyed to Mathews, as is claimed to the end that he Mathews, should collect the rents and apply the same to the payment of the liens, and afterwards deed the property back to plaintiff or some one else at plaintiff's request.Mathews did not desire to give his time to the undertaking and through the procurement of the plaintiff, he conveyed the property to the defendant Day.Mathews paid no consideration for the conveyance to him, and he received nothing for his conveyance to Day.Day accepted the conveyance and took possession of part of the premises and collected the rents therefrom until be conveyed to Hamblin.It is claimed in the petition that the conveyance from plaintiff to Mathews and from Mathews to Day, was intended as a mortgage to secure any advancements which they might make to discharge liens upon the property over and above the rents which should accrue therefrom, and that Day was to reconvey the property to plaintiff upon being paid the money advanced by him, and interest; that Day received a large amount of money as rent neglected to pay off the liens, and sold and conveyed the property to Hamblin; that defendant is liable to account to the plaintiff for the rents and profits, and purchase-money which he received for said premises.The defendant denies that the deed made by Mathews to him was intended as a mortgage for advances to be made, but claims that the plaintiff was indebted to him in the sum of $ 1,300, and that he sold and caused Mathews to convey the property to him absolutely, in consideration of the payment of said debt, and certain other liens upon the property which defendant undertook to, and did, pay.

Defendant further avers that the sale and conveyance of the property was made by the plaintiff with intent on his part to hinder, delay and defraud certain of his creditors and others, who were asserting claims against him, but that the purchase was made by defendant in good faith without any such knowledge of the fraudulent intent and purpose of the plaintiff.Upon a trial by the court it was found that the conveyance was intended as a mortgage to the defendant.An account of the rents and profits and proceeds of the sale from defendant to Hamblin was taken and also an account of the disbursements of the defendant on account of the undertaking, and it was found that the defendant was indebted to plaintiff in the sum of $ 2,739.12 for which judgment was rendered.Defendant appeals.

REVERSED.

Miller & Cleggett and F. J. Bush, for appellants.

Goodykuntz & Blythe and Brown & Binford, for appellee.

OPINION

ROTHROCK, J.

I.

A question is made as to whether the action is triable anew in this court.It is said that the evidence was not taken down in writing.The record shows that the testimony of some of the witnesses was taken by deposition.At the trial the testimony of other witnesses was taken by a short-hand reporter, and the evidence was transcribed by him, and filed in the cause.The transcript of the evidence was filed before the cause was submitted to the judge for his decision, and was taken by him with the written arguments of counsel and the cause was decided in vacation.The judge made his certificate to the evidence in proper form and in due time.This was a sufficient compliance with the statute to entitle an appellant to a trial de novo in this court.

II.If the plaintiff caused the...