Jewell v. Reddington

Rothrock, J. [94] 1. appeal • waiver oí. [93] I. A question is made by appellees as to [94] the right of appellant to prosecute the appeal. It appears that after the decree was entered the appellees paid to the clerk of the court the amount which was awarded against them, including costs. An attorney who was engaged in assisting the plaintiff in the trial of the cause, and had filed a lien for fees, received from the clerk a part of the money so paid. As soon as this was known by plaintiff he repudiated the transaction, and paid to the clerk the amount so withdrawn. Under these facts it is apparent that plaintiff has not waived his appeal. 2. convey-ting aside. II. Appellant insists that the conveyance should not have been set aside; that the most appellees can claim is a life-lease or tenancy of the land. Tiie evidence as to where the fault existed, leading to the disagreements between the father and mother and their daughter and son-in-law, is, as. usual in such cases, very conflicting. The referee found in substance that each of the contending parties was glad to separate from the other and that the removal of Geiger and wife was intended by all the parties as an abandonment of the whole undertaking, and a relinquishment by them of the contract, including the conveyance of the land. We are not disposed under the evidence to disturb this finding. 3.-: referee • gyj_ deneé. III. The referee found that the plaintiff had actual notice of the rights of the defendants in the farm before he took his mortgage. This fact we think is supported by the evidence. In a pleading filed in the case by the plaintiff he admitted that before he took his mortgage he went to said lands to make an examination thereof and found John and Sarah Reddington in possession, claiming under a life-lease. There are other.facts in the case which lead us to doubt the validity of the mortgage. It seems that there were two deeds missing from the chaiu of title, as shown by the record, and that plaintiff took his mortgage with a knowledge of this fact. The transaction was therefore not a straight loan upon a perfect title of record. [95] IV. It is urged that the statement of the account between the parties is grossly inaccurate. Appellant claims that a fair accounting according to the evidence shows a balance against appellees of §1,299, instead of §177. In the account the refei ee made allowance to the Geigers for permanent improvements on the land. For repairs nothing was allowed. This, we think, is correct. It is claimed that the rent and use of the farm was overestimated by the referee. We have examined the evidence on this question, and ail the other matters eutering into the account, and without going over the same in detail we conclude that the summing up by the referee is as nearly correct as wo can make it, and we are content to adopt it as our own. 4. practice in supreme court. V. Appellant claims that he redeemed the land from a tax sale and that he should be allowed the amount paid therefor in addition to what was allowed by the referee. In the original petition for foreclosure a claim is made for taxes paid in redemption of the land. It is claimed that there was no denial of such claim by appellees. An examination of the pleadings leaves the question in some doubt, but we incliue to think there was a general denial of the claim. The doubt arises from the fact that in the admissions and denials the counts of the petition are not specifically named. In the trial before the referee no evidence whatever was introduced by anyone upon the right of plaintiff to have taxes refunded. After the report of the referee was filed the plaintiff fi ed a motion to recommit the case to the referee for the purpose of taking testimony upon this claim. The motion was put upon the ground that the plaintiff by inadvertence omitted to introduce such testimony. The motion was overruled. Whether or not the plaintiff would be entitled under the peculiar facts in this case to be reimbursed for taxes paid we need not determine. There is much iu the case leading us to the belief that he ought to have kept himself out of this controversy. Be that as it may, we are not disposed to interfere with the [96] discretion of the court in refusing to again refer the case. There liad been a full trial. The plaintiff did not seek to amend his pleadings. He asked a re-trial npon part of the ■claim made by him, and the only ground therefor was his own neglect to present the evidence which he had at hand. If new trials and rehearings are to be allowed for such causes, parties will never know when litigation is at an end. Aeeirmed.