37 Iowa 309 | Iowa | 1873
The plaintiffs have the clear legal title. The defendant claims that two of the conveyances upon which they rely for title were but mortgages, though absolute in form. The burden of proof of this fact is upon defendant, and it has been several times said by this court that in such cases the. proof should be clear, satisfactory and conclusive. Noel v. Noel, 1 Iowa, 423; Corbit v. Smith, 7 id. 60; Cooper v. Skeel, 14 id. 578; Gardner v. Weston, 18 id. 533; Atkins v. Faulkner, 11 id. 326; Childs v. Griswold, 19 id. 362; Sunderland v. Sunderland, id. 325, and other cases. In this case the defendant testifies directly and positively to the facts alleged by him, and which show the conveyances to be but mortgages. Albert Head, with whom alone the alleged contract was made, as directly and positively testifies to the facts that s¡how the conveyances were absolute and so intended, and were not mortgages. Both are interested and equally positive; one may be set off against the other. It
Affirmed.