Clearfield Bank v. Olin

Granger, C. J. 1 I. Appellee moves to strike the evidence from the abstract because it has not been made part of the record by bill of exceptions or otherwise. It is true that the pleadings present an equitable issue, as well as one at law, and, so far as we can determine from the record, the cause was tried below as in equity, and equitable relief was granted. Appellee presents an additional abstract, but it only questions appellants’ abstract as to its eontaining all the record and all the evidence in proper foim. Appellants’ abstract show's that it is an abstract of the record, and that is not denied other than as to its sufficiency as such. It seems to us the motion is without facts for its support. We are also asked to affirm the judgment because appellants’ abstract does not contain all the evidence. This branch of the motion seems to be based on the claim that no bill of exceptions was filed. As we have said, the 479 cause seems to have been tried in equity, and it seems to have-been without objection. If so, the right to have it otherwise tried was waived. Code, section 3437. See, also, Parshall v. Moody, 24 Iowa, 314; Green v. Marble, 37 Iowa, 95; Knott v. Tincher, 39 Iowa, 628. We are asked to dismiss the appeal becanse there is no assignment of errors. None is required in an action in equity. Code, section 4136. We should state that appellee’s theory of the motion is that, the action is one at law. 2 II The court below found that there was fraud in the transfer of the -land by Elmer A. Olin to his father, G. A. Olin. The conclusion is fully warranted from the evidence. It is not even open to doubt. Elmer A. Olin executed the deed, and placed it - of record, and after-wards forwarded it to his father by mail; and all this was done without any understanding between the parties. It is true that at one time G. A. Olin had asked for a deed of the land in payment of an indebtedness from Elmer A. Olin to him, but there had been no agreement or understanding that it should be done, and G. A. Olin did not expect it to be done. The transfer was unmistakably made by Elmer A. Olin to avoid his creditors, and wrhen the father finally received and accepted the deed he did so to aid Elmer A. in his fraudulent purpose. It is not important that we discuss the details of the evidence further. 3 III. The south 40 acres of the 80 acre tract were the homestead of Elmer A. Olin, and exempt from liability for plaintiff’s claim. The decree of the district court subjects the-whole tract to the payment of the debt. As to the homestead, Elmer A. Olin and his wife had the right to sell and convey it, and the act could not be in fraud of plaintiff’s rights. Appellee suggests that the act of selling was an abandonment of the homestead. If so, the title must have passed to G. A. Olin, as it might properly do without any prejudice to the plaintiff. With the title either in Elmer A. Olin or G. A. Olin, we do not see upon what theory the480 plaintiff can have any rights in the homestead tract. The decree of the district court will be so modified as to exempt the homestead tract from its operation. Modified and affirmed.