22 Iowa 211 | Iowa | 1867
The plaintiff obtained a judgment in June, 1859, against the defendant, George Hardesty, for a little ■over fifteen hundred dollars. This judgment was •obtained upon a debt secured by mortgage, upon lot five, 'in Fayette square, Iieokuk. The defendant George Hardesty had, prior to the execution of the note and mortgage to plaintiff, executed a note and deed of trust upon the same property, to secure the note, to Charles Parsons & Co. In September, 1864, Parsons & Co. brought suit upon their note and deed of trust, and made the plaintiff, as well as Hardesty, defendant therein. In the same month they obtained judgment for a little le^s than fifteen hundred dollars, and an order for the foreclosure of the trust deed, and barring the equity of plaintiff in the trust property. While this last suit was pending Hardesty claimed, in conversation with Parsons & Co. and their attorney, that there was a large amount of usury in the debt secured by the deed of trust, and that he should interpose that defense, unless they would agree to take a certain amount named, which was a little less than half the amount due, as shown by the note and deed of trust.
It was finally agreed that Parsons & Co. should take their judgment, absolute upon its face, lor the whole amount of their claim; but that Hardesty might discharge it by the payment, within a fixed time, of the .amount he claimed was due thereon, exclusive of usury.
We have read the testimony with care, and it abundantly establishes the fact that the money paid for the assignment was wholly the money of Buss. Indeed there can be no possible doubt on that point.
The plaintiff has most signally failed to establish by proof the allegations of his petition. And, if we should disregard the rule requiring allegations as well as proofs, and seek in the proofs-alone for a basis upon which to rest a decree for plaintiff, he would not then be in any materially better condition.
Buss has a clear right to the judgment, for a consideration fully paid by him. To overturn this right, the plaintiff must, prove something more than that Buss has made or probably will make several hundred dollars by his investment. He must establish either that the assignment was procured for the use and benefit of Hardesty, .as upon loan to him by Buss, or fraud. He has done neither, and we agree with the District Court in the judgment for defendants.
Affirmed.