Boyce v. Allen

Given, J. 2 — I. The following facts are conceded, or ©o established as not to be controverted: On January 5,1892, the plaintiff was the owner of said land, and on that day she and her husband conveyed the same to the defendant by a.n instrument purporting to be a warranty deed. At that time John M. Boyce was the owner of the personal prperty described in the petition, and on said day he executed to the defendant a bill of sale thereof for the consideration of four hundred dollars, which bill of sale purported to be an absolute conveyance. At and prior to said date plaintiff and her husband were indebted to the defendant, and Mr. Boyce was also indebted to L. J. Larson, G. T. & S. D. Johnson, to Sniggs Bros. & Lumblad, and, prior to said fifth day of January, 1892, each of these creditors had commenced actions and sued out attachments on their claims, and caused the — 255 — same to be levied upon said land and personal property. John M. Boyce was also indebted to the McCormick Harvester Machine Company, upon which an attachment was sued out, and levied on his property about, or a little before, said conveyances were filed for record. The defendant assumed or satisfied the mortgage standing against the land, and also> assumed or satisfied the claims of said several attaching creditors, and entered satisfaction of his own claim. There is no question but that John M. Boyce assigned his interest in these several claims to the plaintiff before the commencement of this action. 3 II. Appellant’s first complaint is of the overruling of his motion to transfer the issues joined on the first, second, and fifth counts of the petition to equity for trial. This complaint is grounded upon the claim that plaintiff cannot have the relief asked in these counts until the deed and bill of sale are reformed so as to make them conditional, instead of absolute, conveyances, and that equity alone can grant such reformation. It is true that the plaintiff alleges that, although absolute in form, these conveyances were given only as security; but she does not allege that there was either fraud or mistake in their execution. They were made just as intended. Plaintiff does not ask to set aside or reform these instruments, nor does s'he ask for the establishment of any trust or lien upon the property conveyed, or the proceeds thereof. She asks for no equitable relief whatever, hut simply that the defendant be charged with the considerations which he agreed to pay for said properties, and credited with the amount due to himself, and the amounts paid by him to the other attaching creditors, and that plaintiff have judgment for the balance. To entitle the plaintiff to recover, it is only necessary to find the actual consideration which — 256 — defendant was to pay for these'properties, and to credit him with what he has paid in accordance with the agreement of the parties. The bill of sale recites a consideration of four hundred dollars, yet, as we have seen, each party alleges a different consideration. Appellant cites Carey v. Gunnison, 65 Iowa, 702, — tan action to recover for a breach of contract, in which defendant answered, setting up fraud and mutual mistake in the execution of the contract as a defense, but without asking for any affirmative relief. It was held that the legal effect of this answer was to show that there was no- contract, and that the issue so- raised was not an equitable one. While this case is not directly in point, we think it tends to sustain the ruling of the court below. Price v. Insurance Co., 80 Iowa, 408, is also cited. It is said in that case: “The only demand for judgment appears in the petition, and is for the amount of the policy and costs. The plaintiff might have so drawn 'his pleadings a.s to demand the cancellation of the alleged deed of conveyance and the setting aside of the .alleged settlement, but he 'did not do so. That the pleadings set out facts Which, if true, would| entitle plaintiff to equitable relief, is immaterial, so long as such relief is not demanded. An issue is not equitable, within the meaning of the section quoted, so long as the relief asked or the defense interposed is not equitable. In McMillan v. Bissell, 63 Mich. 70 (29 N. W. Rep. 739), it is said: “The agreement for the defeasance, whether written or unwritten, is no. more than one of the conditions upon which the deed was given, and therefore constitutes a part of the consideration for the conveyance; 'and I have never been able to discover why it was not competent to show it by parol in any case, either in law or in equity, where it was competent to show the actual consideration for the conveyances.” See, also, McAnnulty v. Seick, 59 Iowa, — 257 — 586; Miller v. Kendig, 55 Iowa, 174; Yager v. Bank, ( — , Neb. — ) (72 N. W. Rep. 211). There was no error in overruling the motion 'to transfer to equity. 4 III. Following this first 'Contention, appellant’s counsel present, under six different heads, various claims based upon the evidence, and which may be summed up as presenting the inquiry whether the verdict is in accordance with the instructions and evidence. We will not follow the lengthy, yet able, discussion of the evidence, as to do so would extend- this opinion to an unwarranted length, and serve no good purpose. It is sufficient to say that we have read the evidence and instructions with care, and are of the opinion that the verdict is in harmony with the instructions, and that it has such support in the evidence as that, under familiar rules, we would not be warranted in disturbing it. We may say, in this connection, that Ave have considered the various exceptions to rulings of the court in taking testimony, and do not find any errors therein prejudicial to. the appellant except in admitting a certain conversation between one Willey and the plaintiff and her husband. This error, however, was cured in the instructions by withidrawing ©aid evidence from the 'consideration of the jury, because it had not been made to appear that Willey hald authority to bind the 'defendant. 5 IV. Appellant’s next contention is that the court erred in instructions 11, 16, and 21 in limiting the credits to be allowed defendant to his own and the attachment claims, thus excluding the claim of one Bunton. Mr. Bunton, being called, as to the value of the land, testified that he had been in the lumber business in 1892; that he had a mechanic’s lien on Boyce’s land for three hundred and eight dollars and twelve cents; thait he was familiar with the amount of lumber that had been put on the place; and says, — 258 — “I think he got all the lumber from me.” In defendant’s statement of the account he credits himself: “C H. Bunton vs. Boyce, $308.89; interest $.25; taxes, 1891, $76.05.” Instruction 11 states the undisputed facts substantially as we have stated them, and without any direction as to whait should or should not be allowed in the way of credit© to the defendant. Instruction 16 directs the jury that the defendant was authorized to discharge the indebtedness to him, “and also the several amounts due or owing on the claim© in the several attachment suits., including the costs in said action©.” That defendant was entitled to these credits, there is no dispute. Plaintiff conceded that he wais to pay these attachment claims, while defendant contend© that 'he wa© to pay these and other indebtedness to the amount received’ by him. In the nineteenth instruction the jury was told that it was to allow the defendant credit as against the amount received from the real estate for “all moneys, disbursements, and advancements which you find the defendant made a© agreed by him to 'be made as to the consideration for the conveyance.” If the jury found the agreem ent to be as claimed by the plaintiff, it was only the attachment claims that were to he allowed, but if as claimed by the defendant, then, under this instruction, they were to allow him for all claim© paid as agreed to be paid, which would include the Bunton claim. This instruction 19 is identical, in the language quoted, with one asked by the appellant. Now, it is true that in the twenty-first instruction the attachment claims are referred to* and no mention made of the Bunton claim; but, in view of ©aid nineteenth instruction, we think the jury must have understood •that it might allow the Bunton claim unless they found that the agreement was as to the attachment claim© only. — 259 — Y. The jury found specially that the attachment was wrongfully, but not maliciously, sued out, and allowed plaintiff one hundred dollars actual damages and no exemplary damages. Appellant contends that the finding that the attachment was wrongfully sued out, and that plaintiff is entitled to¡ one hundred dollars actual damage's, is not supported by 'the evidence. We think the findings .are fully warranted, by the evidence, and the same is true .as to the alleged settlement. What we have said disposes of all the material questions discuisised, and leads to the conclusion that the judgment of the district court is correct, and it is therefore affirmed.