Hyatt v. Cochran

37 Iowa 309

Opinion

Cole, J.

The plaintiffs have the clear legal title. The defendant claims that two of the conveyances upon which they rely for title were but mortgages, though absolute in form. The burden of proof of this fact is upon defendant, and it has been several times said by this court that in such cases the. proof should be clear, satisfactory and conclusive. Noel v. Noel, 1 Iowa, 423; Corbit v. Smith, 7 id. 60; Cooper v. Skeel, 14 id. 578; Gardner v. Weston, 18 id. 533; Atkins v. Faulkner, 11 id. 326; Childs v. Griswold, 19 id. 362; Sunderland v. Sunderland, id. 325, and other cases. In this case the defendant testifies directly and positively to the facts alleged by him, and which show the conveyances to be but mortgages. Albert Head, with whom alone the alleged contract was made, as directly and positively testifies to the facts that s¡how the conveyances were absolute and so intended, and were not mortgages. Both are interested and equally positive; one may be set off against the other. It is true that the weight or preponderance of the circumstances tend more strongly to corroborate Oochran than Head, but without direct testimony, to the same effect, they are not sufficient to overcome the absolute paper title. Having come to this conclusion, it is unnecessary here to discuss, or even state, the facts in detail.

Affirmed.