23 Iowa 208 | Iowa | 1867
However correct the instruction asked may have been, in view of the only real issue in the case, it was still subject to the objection, that, thereunder, plaintiffs were entitled to recover without proof of title in themselves. In other words, it based their right to the property upon one single fact, a fact of no weight or significance, having no place in the case, until they had shown, at least, a jjrima faeie right to recover. Their title was denied generally and in detail, and they had no right, therefore, to ask the court to.assume that the only question was the one indicated by the instruction asked.
Upon plaintiffs’ assumption as to the true state of the title, the instruction was correct, and should have been given. And thus viewing it, we now proceed to examine the instruction given.
Then, again, the case upon other facts, is quite as strong if not stronger for plaintiffs, than in the case of Hale v. Heaslip (16 Iowa, 457) followed in Page v. Ewbank (18 Id. 580). There the debt'was contracted in September, 1857j. the property bought in J une of the same year, occupied as a homestead in March, 1859, and the judgment rendered in the next June. Here the title was acquired in October, the debt contraetéd in November, 1856, the judgment rendered in September, 1858, and the occupancy commenced in July, 1859. So that we have here, in fact a stronger case, inasmuch as the judgment was rendered before occupancy. And I remark that Cole, J., who dissented in the former, while he does not concede to this difference the full force claimed for it by
■One or two other matters maybe mentioned tending to the same result. The instruction given speaks .of improvements made prior to the time' the debt was contracted, and of the occupancy of the premises, before the rendition of the judgment, for all which there was no warrant whatever in the testimony, and the effect could only have been to mislead and confuse the jury.
Beversed.