17 Iowa 421 | Iowa | 1864
The defendant then offered to prove, by the parol testimony of this witness,, that the only claim or title he had to the lots, or any of them, was a bond for a deed for the same from one Burris; that the witness held such bond at the time of his sale to defendant, but shortly after he ascertained that Burris could not make any title to the lots, or any part thereof, to the witness, and thereupon the witness received from Burris the money he had paid him, and canceled the agreement with Burris and surrendered his bond, which was destroyed, and also offered to prove the contents of said bond.
The plaintiffs objected to the giving of this testimony, and the court sustained the objection and refused to permit defendant to prove it; and this ruling is assigned as error.
It was clearly competent and proper for the defendant to prove, by the parol testimony of his grantor, the witness, that the only title or claim he had was a bond for title from his grantor; and this, not for the purpose of showing title to real estate or the want of it, but as a legitimate means of directing the further investigations of the title, and showing thereby, by proper evidence, that a title thus derived was worthless.
In truth and in fact the defendant denied that plaintiffs held the note as collateral security, and in the course of the trial introduced a witness to prove that they did not so hold it; and the defendant’s theory of the case was in part based upon the fact that plaintiffs did not hold it as collateral at all. In the concluding paragraph of the bill of exceptions, the district judge who tried the cause states that the instruction “ incorrectly states that it is claimed by defendant that the plaintiffs hold said note as collateral, &c.; that the words ‘ by defendant,’ therein, was an inadvertence on the part of the court — the court merely intending to say that it is claimed, without saying by which party, and the attention of the court was not called specifically to the error at the time.”
A fair construction of the whole bill of exceptions, with this additional statement by the district judge, is, that
Reversed.