Kellogg & Harris v. Aherin & McGann

48 Iowa 299

Opinion

Day, J.

I. The evidence shows clearly that the defendant McGann paid a sufficient consideration for the land. It is incumbent, therefore, upon the plaintiffs to prove fraud upon the part of the grantor, and participation in the fraud upon the part of the grantee, so far as to have knowledge of the grantor’s fraudulent purpose, or knowledge of such other facts and emeumstances as ought to have put the vendee upon such inquiry as would have led to an ascertainment of the truth, or as will afford reasonable ground for the inference that he purposely or negligently omitted to make such inquiries as an ordinarily prudent man in the same situation would make. Steele v. Ward, 25 Iowa, 537; Drummond v. Couse, 39 Id., 442; Hopkins v. Lankton, 30 Wis., 380. The burden of proof is upon the plaintiffs to establish these facts by satisfactory evidence. Fraud will never be imputed when the facts upon wliicli it is predicated may consist with honesty and purity of intention. Lyman v. Cessford, 15 Iowa, 229; Schofield v. Blind, 33 Id., 175; Drummond v. Couse, 39 Id., 443.

Testing the evidence by the principles enunciated in the foregoing cases, we are unable to find affirmatively that the defendant McGann is chargeable with a fraudulent purpose. All the facts and circumstances proved may reasonably consist with honesty of purpose upon his part. The evidence falls short of that satisfactory character which should be required in order to attach a fraudulent purpose to the defendant McGann, who seems to stand entirely indifferent as to Aherin, and to have no motive to assist him in the perpetration of a fraud. The case involves simply a question of fact. A review of the testimony in detail would swell the volume of our reports without subserving any practical or useful purpose.

Upon a careful examination of the evidence submitted, we are satisfied with the finding of the court below, dismissing plaintiffs’ petition.

1. aflirmative°n: reiieí. II. It is claimed that the court erred in quieting the defendant’s title against the plaintiffs, as prayed in the defendant’s answer, because the defendant filed no cross-bill. Affirmative relief can properly be claimed only py cross_petition. But no objection was taken to the form of the pleadings in the court below. Such objection ought not, therefore, to avail now. We are not unmindful that the case of McGregor v. McGregor, 9 Iowa, 77, seems to-be opposed to this view, but our conclusion is more in harmony with the more liberal spirit of legislation -and judicial construction which prevails at the present day.

Affirmed.