20 Iowa 510 | Iowa | 1866
The court below found that Mann was the principal, and Hyatt the surety in the note upon which Frazier recovered judgment. This question of fact settled, there seems to be no controversy as to the legal rights of the parties. For counsel do not differ as to the law upon this part of the case, but disagree as to the facts.
We have examined with much care and unitedly the testimony of the several witnesses, and are brought to' the conclusion, that it does not warrant the relief asked. Plaintiff and Mann bought of Frazier one hundred and fifty acres of land. The note for which-the judgment was recovered was a part of the consideration for this land. Some seven hundred and fifty dollars was paid in a nursery stock. Plaintiff claims that this was his. If this is true, then it follows, we think legitimately, that Mann should pay the balance due on this judgment. On the other hand, if it belonged to the parties jointly, then plaintiff has not paid his due proportion of the purchase-money. For he got ninety acres of land, while Mann got but sixty.
And it is right here that, in our opinion, the controversy-hinges.
Now, there is no dispute but that Mann did have a joint or equal interest in this nursery. Plaintiff claims, however, that he bought this interest before it was sold to Frazier, paying for it, as, he alleges was agreed, by certain improvements made by him on other lands of Mann; and that the whole amount ($750.15) was his payment, and not a payment by them jointly. But this fact it seems to us is not established with sufficient clearness to entitle plaintiff to recover. Mann was an equal owner certainly until about the time of the trade with Frazier. If there was a change as claimed, the burden of proof is upon the plaintiff to establish it. And upon this subject the proof is quite uncertain; entirely too weak to entitle a party to affirmative relief. This is true as applied to plaintiff’s own testimony; while that offered by defendant in part expressly negatives it, and the fairly established facts render it quite improbable. Defendant expressly contradicts such an agreement in his testimony, points out how the improvements were paid for, while the decided weight of the testimony shows that they were not worth one-third of the estimated value of Mann’s interest in the 'nursery. But aside from this it clearly appears that Mann was the father-in-law of plaintiff; that he was possessed of a fair property; while plaintiff had but little, if any, beyond his interest in the nursery; that Frazier regarded Mann as the responsible party; and that no one regarded plaintiff’s name as of any particular value as a surety. And, indeed, the whole transaction impresses us with the belief that Mann was assisting plaintiff to procure a home; taking the sixty acres because Frazier could not let Hyatt have the ninety alone; and that if either was surety for
But as the conclusion, reached on the first branch of the ease, disposes of the main, if not, indeed, the only ground upon which plaintiff seeks relief, we need not further pursue this inquiry.
Reversed.