Cochrane v. Breckenridge

39 N.W. 274, 75 Iowa 213, 1888 Iowa Sup. LEXIS 305

• Court: Supreme Court of Iowa
• Decided: September 10, 1888
• Status: Published

Opinion

Seevers, C. J.

— The defendant claims that during the lifetime of Robert Cochrane he entered into an oral contract with the deceased, whereby he purchased and paid for the real estate in controversy, and under such contract he entered into possession thereof. The defendant and his wife were introduced as witnesses in the defendant’s behalf. It was objected that they were incompetent and could not testify as to any personal transactions between the deceased and the defendant. The evidence was admitted, and said witnesses gave evidence tending to show a purchase by defendant and payment for the real estate. This was a personal transaction with the deceased, and the evidence was clearly incompetent. Code, sec. 3639.

It is said that we' cannot consider the competency of the witness, because there was no exception taken to the ruling of the court in admitting the evidence. As this is an action in equity, no exception was necessary. The objection made below can be renewed here for the reason that the trial is de novo.

It is said that the witnesses were competent, because one of the plaintiffs was introduced as a witness in their behalf. Such witness testified only to searching among the papers of the deceased for a certain conveyance. This did not have the effect to make the defendant and his wife competent to testify to personal transactions with the deceased; and as their evidence must be rejected, the defendant has utterly failed to establish the defense pleaded by him, and therefore the decree of the district court must be Aeeirmed.