174 Iowa 376 | Iowa | 1916
It is evident from this recital of the record that the evidence was such that the jury might have found a gift for life of the use of the ground on which the house stands, and that this was accepted and acted upon by the defendant in entering into and continuing in possession. See Sires v. Melvin, 135 Iowa 460; Section 4217, Code.
“In answer to the inquiry of the jury as to the court’s meaning in instruction No. 10 of the term ‘chargeable with notice of whatever right the defendant may have had under such lease or right from said Reagan, ’ the court submits the following: "Where a person is in possession of property, the title to which is in another, any person dealing with the owner for'such land while the possession thereof is in another, must .take notice of whatever right the person in possession may have to or in said land, and it is his duty to investigate and find out what rights the possessor may have; and if he fails to do so, he takes such land or title subject to whatever rights the possessor thereof may have therein.”
The jury retired, and, after being out 15 minutes, returned with a verdict for defendant.
(a) Appellant first insists that the court erred in giving the additional instruction without submitting it to counsel. It was authorized by Section 3720 of the Code. Burton v. Neill, 140 Iowa 141. Section 3705-a, Code Sup., 1913,
(b) But it is said that the additional instruction assumed facts in issue and, in any event, that it was inconsistent with the tenth instruction, previously given. A casual .sreading of the two instructions sufficiently refutes these criticisms.
Appellee argues that this affidavit might not have been received because of matters inhering in the verdict and, in any event, the only disagreement was with respect to the meaning of the tenth instruction. But the affidavit refutes this thought by saying that the agreement was made in advance to abide the outcome of asking an additional instruction, regardless of any view as to the merits. Nor do we think the matters covered by the affidavit such as should be excluded from proof in this manner, because of inhering in the verdict. It will be observed that the agreement cut off all deliberation on the evidence by the jury or any member thereof, and bound in advance all to agree, regardless of their individual convictions as to the merits. Affidavits of jurors to show that “the verdict was determined by aggregation and average or by lot or game of chance or artifice or improper manner” were held, on great consideration, in Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, to be admissible to show such misconduct, and that decision has been followed since in numerous decisions denouncing the quotient verdict as misconduct exacting a new trial. In Merseve v. Shine, 37 Iowa 253, the verdict was determined by writing on 12 slips of paper the name of