101 Iowa 463 | Iowa | 1897
The claim of plaintiff, in substance, is that, for the consideration of one thousand seven
This somewhat lengthy statement of the issues is made to help to a better understanding of the questions arising as we proceed with the case. These questions ¡are largely of fact, and the controlling one is, who in -fact was the purchaser of the property? On this issue there is a direct conflict in the evidence, and, without Setting it out or quoting therefrom in detail, it is sufficient to say that we are constrained to believe that Schoff was the purchaser of the property under a contract substantially as claimed by the plaintiff in his petition. A memorandum of the contract was written out by Schoff during the negotiations, which was signed by plaintiff and Schoff, which shows a sale to this defendant upon the terms and conditions recited by plaintiff in his petition, and, at the time the first payment of money was made, plaintiff gave Schoff a receipt for the payment as purchaser. All of the written evidence in the case corroborates the plaintiff. True, both Schoff and Snyder say that Snyder was the purchaser. But Schoff’s testimony is unsatisfactory and contradictory, and, in the face of his written declarations to the contrary, is not entitled to much weight. It is no doubt true that Snyder did not know what Schoff agreed to pay plaintiff for the property, and was led to believe that it was one thousand four hundred and fifty dollars, and it may be that, if he was relying upon a mortgage given pursuant to the agreement between plaintiff and Schoff, plaintiff’s claim should either be defeated or held inferior to that of Snyder. But such is not his attitude. He claims to have purchased the property direct from plaintiff for the sum of one thousand four hundred and fifty dollars, without knowledge that Schoff had agreed to pay the extra two hundred and fifty dollars. We have
It is said in argument, however, that the court was in error in establishing the judgment it rendered against Schoff, as a lien superior to any claim, title, or interest of Snyder, for the. reason that the facts pleaded and the prayer of the petition do not entitle the plaintiff to any such relief. The petition- charges a sale to Schoff under the agreement before stated, and also alleges that Snyder is claiming a sale to him. It further says that defendants have entered into a conspiracy to cheat and defraud the plaintiff out of two hundred and fifty dollars, and asks judgment for this amount, with twenty-four dollars, interest paid; that the judgment be made a lien upon the property; and for further equitable relief. The answers in effect deny the sale to Schoff, claim that it was made to Snyder for one thousand four hundred and fifty dollars, without knowledge on his part of the agreement of Schoff to pay two hundred and fifty dollars, which agreement, it is claimed, was that of Schoff alone, and defendant Snyder prays that he be decreed to be the owner of the property. With such issues and such a prayer on the part of Snyder, it is clear that plaintiff’s claim could not be established as a second lien upon the property. Snyder holds no mortgage from Schoff. If he ever held an equitable one, it has been merged in the legal title. Snyder has been in possession of the property, as owner, since the latter part of the year 1894, and has received the rents and profits thereof. Under the issues as presented, there was no