118 Iowa 458 | Iowa | 1902
The plaintiff is the widow of W. L. Gone, who died intestate August 6,1899, and she sues on her own behalf and as guardian of W. Y. Gone and A. E. Gone, minors, and only children of he'self and said W. L. Gone. The defendant Kate L. Gone is the widow of W. D. Gone,
I. It is admitted that Emma D. Gone, subsequent to the death of her husband, provided funds belonging to herself and her children, in the sum of $2,500 which was paid on the mortgage incumbrance covering the lands in question, and that as to such lands the mortgage was thereupon canceled and satisfi d of record.
Counsel for appellant admit that, were the case other than one for specific performance, the language of the instrument would be sufficient to cast upon the resisting party the burden of proof. Our attention is not called to any authority for such distinction. It is true that in cases such as the one before us the consideration for the contract must be actual, and not merely constructive. A technical consideration, so to speak, will not suffice. Bispham Equity, section 372. But here the agreement was reduced to writing, and of itself such writing imports a consideration. This is an unqualified rule of our statute. Code, section 3069. A written instrument imports a consideration, and the burden is upon the party defending against such instrument to show that it was without consideration. French v. French, 91 Iowa, 140.
We conclude that the decree was right, and it is 'AKUIRMED.