18 Iowa 533 | Iowa | 1865
The defendants claim that Samuel Weston was on the land for the purpose of preemption; but that, since both claims only made a quarter section, it could be proved up under one preemption with less trouble and expense, and, therefore, by agreement, the whole was preempted and entered by James Gardner; that Weston furnished his due proportion of the entrance price at' the time of entry, and the deed was afterwards made to him by Gardner, pursuant to the agreement and according to their claim line.
The plaintiffs, Gardner and wife, introduce themselves as witnesses, and testify to the matter as stated in their petition. Weston also takes his own testimony, and fully sustains thereby the allegations upon which he bases his claim. In addition to this, each party succeeds, to a greater or less extent, in producing testimony of declarations or admissions made by the other party, corroborative of their respective testimony.
So far as the case rests upon the testimony of the parties, and the corroborating testimony of the adverse party, it is very equally balanced. In such case, the plaintiff, being required to establish his case by a preponderance of evidence, must fail.
Again, the claim of the plaintiffs is based upon a course of conduct very unnatural and most unusual, and hence improbable; while the claim, as made by defendants, is based upon a course of conduct of frequent occurrence, as shown by reports of cases in this court, and quite natural and reasonable. Testimony offered in support of alleged transactions, in accordance with the ordinary course of business, may be entirely satisfactory, while the same character of testimony in support of alleged facts, at variance with the experience of men, and wanting in any probable motive, would be rejected as unsatisfactory if not unworthy of credit.
In addition to these considerations, the application of the general rule, that where a party seeks to disturb the title of another holding under an absolute deed, even for the purpose of showing it to be a trust or mortgage, he must do so by evidence rendering it clear and satisfactory, would compel us to hold, as we do, without any doubt, that the judgment in this case must be Aíñrmed.