Davis v. Barrett

Supreme Court of Iowa

Davis v. Barrett

64 Iowa 684

DecidedOctober 24, 1884

StatusPublished

This text of 64 Iowa 684 (Davis v. Barrett) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. Barrett, 64 Iowa 684 (iowa 1884).

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Opinions

Day, Oh. J.

The plaintiff alleges that the defendant advanced, for the use of the Lereauxs, a certain sum of money, and tbat he obtained the legal title to certain lands owned by them, which he was to hold as security for the sum advanced. All this the defendant admits. Under this state of facts, the defendant would have a lien upon the lands for the amount advanced, and the remedy of the Lereauxs, or their assigns, would be to redeem by payment of the amount with interest. The plaintiff, however, excuses himself from making any effort to redeem, by the allegation that the defendant has deeded the land to Tiers, and thus put it out of his power to reconvey, if redemption should be made. This allegation is material. Unless this fact exists, the plaintiff has no standing in the form of action which he has adopted. The evidence shows, without any conflict, that the defendant has not deeded the land to Tiers, but that he still holds the title in his own name. Even if the defendant had conveyed the land as alleged, the measure of plaintiff’s damages' would not be the $140 advanced by the Lereauxs toward the redemption, but the amount for which the defendant sold the land, or the excess of the reasonable value of the land above the amount which the defendant received for it. The plaintiff, however, insists that the defendant sold the land only for enough to reimburse himself, and there is not a particle of evidence that the reasonable value of the land was more. Under the evi[687]*687dence adduced, the plaintiff is not entitled to recover, and the court should have sustained the motion for a new trial, upon the ground that the verdict is not sustained by the evidence. The appellee claims that the motion for a new trial was not filed within the time prescribed in the statute, but this claim is not sustained by the transcript, into which we have been obliged to look, on account of a dispute as to the correctness of the abstract.

Reversed.

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Day, Oh. J.

The plaintiff alleges that the defendant advanced, for the use of the Lereauxs, a certain sum of money, and tbat he obtained the legal title to certain lands owned by them, which he was to hold as security for the sum advanced. All this the defendant admits. Under this state of facts, the defendant would have a lien upon the lands for the amount advanced, and the remedy of the Lereauxs, or their assigns, would be to redeem by payment of the amount with interest. The plaintiff, however, excuses himself from making any effort to redeem, by the allegation that the defendant has deeded the land to Tiers, and thus put it out of his power to reconvey, if redemption should be made. This allegation is material. Unless this fact exists, the plaintiff has no standing in the form of action which he has adopted. The evidence shows, without any conflict, that the defendant has not deeded the land to Tiers, but that he still holds the title in his own name. Even if the defendant had conveyed the land as alleged, the measure of plaintiff’s damages' would not be the $140 advanced by the Lereauxs toward the redemption, but the amount for which the defendant sold the land, or the excess of the reasonable value of the land above the amount which the defendant received for it. The plaintiff, however, insists that the defendant sold the land only for enough to reimburse himself, and there is not a particle of evidence that the reasonable value of the land was more. Under the evi[687]*687dence adduced, the plaintiff is not entitled to recover, and the court should have sustained the motion for a new trial, upon the ground that the verdict is not sustained by the evidence. The appellee claims that the motion for a new trial was not filed within the time prescribed in the statute, but this claim is not sustained by the transcript, into which we have been obliged to look, on account of a dispute as to the correctness of the abstract.

Reversed.

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64 Iowa 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-barrett-iowa-1884.