57 Iowa 705 | Iowa | 1882
I. The contract upon which the claim is based is as follows: “This agreement entered into this 22d day of October, 1870, by and between Eranz Mally, of Clayton county, State of Iowa, of the first part, and John Malli, of Winneshiek county, and State of Iowa, of the seeond part. Witnesseth: That, whereas, the said Eranz Mally, for a valuable, good and sufficient consideration received (the receipt whereof is hereby acknowledge), do hereby promise and agree with said John Malli, that I will grant a life lease to Christina Malli, the wife of John Malli, on the following described land, to-wit: The south half of the northeast quarter, section 14, township 97, range 9, embracing the house which stands in part on the north half of said quarter section, to use said house with the south half of the land as her own, during her and her husband’s natural life, but after the death of Chriatina Malli and John Malli all right of ownership to said land shall go back to the
“Provided, however, that said.Christina Malli and her husband shall deliver in the granary at the farm, after the expenses of necessary repairs on buildings and fences have been deducted from the amount so raised from said last named land, for each year during the ten years, one-third of the balance so left, and Eranz Mally is to pay all taxes assessed against said farm, except on personal property, which Christina Malli shall pay.
“It is further agreed, that should Christina Malli at any time be willing to give up this contract, I will give her a good warranty deed on eighty (80) acres of land, near Le Mars, in Plymouth county, Iowa, where there is at least four hundred dollars worth of improvements made on it, and all the live stock and farming tools.
“This contract shall take effect from the day the above named land is sold under a foreclosure of mortgage, wherein A. Bradish claims a judgment against John Malli, and for the purpose not to make any more costs to secure the right of redemption for John Malli, I, Eranz Mally, will buy the land in at sheriff’s sale, and John Malli waiving all rights and interest in the farm. And this new contract under this lease be from that date in full force and virtue, except in case that Christina Malli will except the above agreement left to her option.”
(Signed) Franz Mally,
John Malli.”
It appears from certain agreed facts in the case that at the time the written contract was executed, John Malli, the husband of Christina Malli, the plaintiff herein, was the owner and in possession of the premises described in the contract, and that he had executed to Franz Mally a mortgage thereon
II. It is next contended that the .plaintiff repudiated her rights under the contract by setting up the defenses of fraud, and payment, and satisfaction of the mortgage. This position does not appear to ns to be tenable. Franz Mally had dismissed the foreclosure proceeding under which it was contempla
If we were to concede that John or Christina Malli could, under the law, have prosecuted Franz Mally criminally, for adultery with Christina, and that a contract made in consideration of their forbearance to prosecute would be void, yet we would not reverse a cause without clearer evidence that it was the criminal charge which was compromised, than that given above. Whether John Malli desired to prosecute his brother, criminally, foi>the offense, or merely to prosecute him in a civil action for damages, does not clearly appear from the evidence. In common parlance the word prosecution is frequently applied to civil actions for torts.
Eeversed.