Barker v. Kuhn

Cole, J. l. covmnyof contract, — I. The evidence tended to show that the contract of sale of the house and lot by the plaintiff to the defendant was substantially as stated by the petition; that after the execution of the conveyance of the land to plaintiff, the deed was handed to his son, who took it to the plaintiff’s residence and put it in a drawer as directed by the plaintiff, who is a blind man; on the same day the son, with the plaintiff’s knowledge, took the deed back to the defendant, who, at the son’s request, destroyed it, and then made another deed to Pratt, from whom the son, by his father’s consent, had borrowed $200, and who took the deed as a security for the re-payment of the money and made a bond to [394] plaintiff to convey tlie land to him when the money was re-paid; afterwards the money was re-paid, and Pratt then conveyed the land to plaintiff by deed of special warranty. Upon the trial the deed by defendant to Pratt and the deed by him to plaintiff were admitted in evidence. This is the first error assigned. It is claimed that the deed to Pratt and the bond by him to plaintiff constituted a mortgage, and hence no title passed to Pratt, and no action on the covenants could be maintained by him or his grantee with knowledge. But we hold that under the circumstances the deed to Pratt was, as, between him and the defendant, an absolute conveyance; and when Pratt by conveying to plaintiff executed the trust therein resulting as between him and the plaintiff, the legal title passed, and the deeds were competent evidence thereof. 2. practice : pí4jud'ice'°ut II. The plaintiff also introduced in evidence, a list of swamp land selections, embracing the lands conveyed by the defendant to Pratt, together with the certificate of the Register of the State Land Office that such list was a copy of the records in his office, and also a certificate that “ after making a thorough examination of the records and files of this office, I fail to find any evidence that the above described tracts of land or any portion of the same, were ever approved as swampy or overflowed lands, by the Secretary of the Interior, or patented to the State of Iowa by the United States as such, or by the State of Iowa patented to the said O’Brien county.” This certificate was objected to as incompetent, under Revision of 1860, §§ 4047 or 4053, (now, Code of 1873, §§ 3702 and 3708,) and its admission in evidence is the next error assigned. The sufficient answer to it is, that since the burden of proving seizin in himself at the time of the conveyance or after, was and is upon the defendant, as we hold herein, if it was error to admit the certificate, it was error without prejudice, since it did not add to that burden. For, if the defendant did prove seizin or title in himself) tías did not disprove it; and if he did not prove such title, then the verdict against him should follow, even without this evidence. [395] III. The same absence of prejudice, is a full answer to the next alleged error in the admission of evidence as to the value of the land; since the court instructed the jury that the consideration, with interest, paid by the plaintiff to the defendant, was the measxire of damages. 3. evidence: coSmumoations: party. IY. The plaintiff became a witness for himself and testified to material facts. On cross examination the defendant’s counsel asked him what statement he made to his att°raeys respecting his knowledge and the purp0se 0f making the deed to Pratt. This was objected to as calling for a privileged communication; and the objection was sustained, and herein is the next error assigned. Our statute, Eevision of 1860, § 3985, (Code of 1873, § 3643,) provides that “no practicing attorney * * x x x x siia]2 he allowed in giving testimony to disclose any confidential communication properly entrusted to him in his professional capacity, *****” If this question had been asked the attorneys, it is clear the objection made should have been sustained; and this, also, at the common law, for the statute is but declarative of the common law; and at the common law, the party was neither competent n<?r compellable to testify. Hence such communications were effectually locked at the common law, and could not be revealed at all. While our statute makes parties both competent and compellable to give evidence, Eevision of 1860 §§ 3978 and 3980, (Code of 1873, §§ 3636 and 3638,) it should not be construed to open the door to a full inquiry into privileged communications. 4. verdict : evfdence.0 Y. It is next assigned as error, that .the verdict is not sustained by the evidence, and should have been set aside and a new trial granted. The particular point made in argument, is, that the evidence fails to show that the covenant of seizin or good right to convey was contained in the conveyance made by defendant to the plaintiff, and .which was destroyed. But under the evidence as contained in the abstract, the jury might have found that there was no delivery of that deed, and have found for the plaintiff under [396] the other deeds discussed in the first point of this opinion, which deeds do contain the covenants named. There is also another complete answer to this assignment, and it is, that all the evidence is not before us. The aqipellants so state expressly in their abstract. • Unless we have all the evidence, of course we cannot say that the verdict is not sustained by it. e covenant óv sEiztN; proof. YI. The court instructed the jury that the burden of proof was upon the defendant to show that he had title to the lands at ^me ke conveyed or had since, acquired it. q^e appellant’s counsel concede that this is in accord “with the weight of authority and the previous rulings of this court.” This concession is doubtless correct, and we are not inclined now to controvert the propriety of the rule, whatever might be our view, if the question was res integra. YII. ' The appellant’s counsel also assign error upon the giving of three instructions asked by plaintiff; but as we have, in the disposition of the preceding points, fully discussed the propositions upoii which this assigned error rests, it is not necessary to again present them. Affirmed.