Jones v. Marcy

49 Iowa 188

• Court: Supreme Court of Iowa
• Decided: September 19, 1878
• Status: Published

Opinion

Beck, J.

1. practice: demurrer. I. The action was not set down for trial upon written evidence as prescribed by Code, § 2742, and is, there- ' fore, not triable ele novo in this court. This seems fo be conceded by plaintiffs, who submit the cause to us upon an assignment of errors presenting ten objections to the rulings and judgment of the court below. Seven of these objections may be disposed of upon the ground that no exceptions were taken in the court below to the rulings made the subject of objection. Of this number one based upon the overruling of a demurrer by plaintiff, to defendants’ cross-petition cannot be considered, for the additional reason that plaintiffs, after the ruling, answered the pleading assailed by their demurrer.

2. ___: pleading: evidence. II. Plaintiffs made objections to the introduction of evidence in support of a paragraph of defendants’ answer, being g. —that portion which is in the nature of a crossdenoe'ns‘ evl petition. The objection was overruled, and to this ruling defendants excepted. The objections are substantially the same presented in the demurrer, and others which deny the right of defendants to the relief asked, or are based upon defects in his pleading. Questions of this character cannot be raised upon objections to evidence.

III. The land conveyed by the sheriff’s deeds constituted plaintiffs’ homestead. The defendant introduced evidence tending to show that after the sale the husband entered into a verbal lease of the premises, agreeing to pay rent therefor to defendant. This evidence was objected to by plaintiffs, “on the ground,” using the language of the abstract, “that it was a verbal lease, not in writing, signed and concurred in by the husband and wife. ” The exception is based upon a misapprehension of the facts. The evidence tended to show that, plaintiff leased the premises from defendant, not to him. Surely it cannot be claimed that a husband cannot enter into a contract of lease, whereby he becomes a tenant of premises,, without the concurrence of his wife. It may be that he cannot lease his homestead to be occupied by another without the assent of his wife, but that question is not in this case.

3. statute of frauds: verbal lease. IY. Plaintiffs insist that as the verbal lease was not to be performed within one year it is within the statute of frauds, and was, therefore, erroneously admitted in evideuce. We may concede that the objection-was raised by the exception just stated. But the question here raised has been decided by this court. It was held in Sobey v. Brisbee, 20 Iowa, 105, that the statute of frauds applied to the duration of the term of a lease, and not to the time at which possession of the premises was to be taken. Hence, a léase for one year, to commence at a future day, is not within the statute. The rule must be followed in this case.

Y. Plaintiffs entered an exception to the decree, and now insist that it 'is not supported by the evidence. It is sufficient to say upon this point that the abstract fails to show that we have all the evidence before us.

The judgment of the Circuit Court must be

Affirmed.