Ayres v. Campbell

1 Iowa 212

Opinion

Isbell, J.

(1)

-The questions attempted to be raised on tbe instructions of'the court in tbis case, we cannot consider,, for tbe reason tbat tbe record does not disclose what of tbe instructions were given, or what refused, or whether all were given or all refused.

Tbe only substantial question for our consideration, is, does tbe record disclose such an interest in Joseph Crews, as to disqualify him as a witness for tbe defendants ? Tbe action is brought to recover tbe rents and profits arising from lot 2, in block 36, in Port Des Moines, which the plaintiff alleges has been, from the 7th day of March, 1849, his property, and that he has been from that time entitled to the rents and profits; and that the defendants have held the same, and received the rents and profits to the amount of nine hundred dollars.

. The ease has not been argued at length, and we are left to wade through voluminous pleadings to reach a point, and if any fact, that should influence our determination, has escaped our attention, that must be our excuse. Without reciting this mass of pleading, we think that we may confidently say, that both plaintiff and defendant attempt to derive their right to the possession of the premises, and con■sequently to the rents and profits, from the witness. That the following facts are put in issue, among others: that the deed by which plaintiff claims was never delivered; that $200 was to be paid by plaintiff to one Frederick for the benefit of witness, before the deed was to be delivered; that plaintiff wrongfully obtained possession of the deed, without paying this sum; that one of the defendants was surety for the payment of this sum; and that, in consideration of his having to pay it, witness transferred to him a title bond he held for the lot, and all his interest in the lot.

Now, if it were not true that the deed was wrongfully obtained, or if it had been delivered, and plaintiff had not contracted to pay this two hundred dollars, it would appear quite clear that the consideration for paying the debt to Frederick by Campbell, had failed, and that witness would be liable to refund the money so paid by Campbell, as his surety; and, on the other hand, if the deed had not been delivered, and plaintiff was liable to pay this two -hundred dollars to Frederick, before he was entitled to a deed, then, witness had a subsisting interest in the lot, which, if Campbell acquired, would secure him against the payment of this debt, and the consideration for paying Frederick had not failed. "We, therefore, conclude that the witness was so interested, that he was incompetent to testify, unreleased by Campbell, Judgment reversed.

Weight, C. X, having been of counsel, in the court below, took no part; in the decision of this eause.