53 Iowa 392 | Iowa | 1880
The introduction of the plaintiff’s deed made a prima facie case for him. It became incumbent then upon the defendant to show facts sufficient to defeat the title thus acquired. Boone v. Childs, 10 Pet., 211. The defendant insists that this is not so, because the plaintiff assumed the burden of proof in respect to notice by averring that the defendant had notice. If we should concede that such averment by plaintiff would have the effect to shift the burden of proof in respect to notice, it would not, we think, shift the burden of proof in respect to the payment of a valuable consideration. Of such payment there was no evidence whatever. The deed to the defendant did, it is true, purport to be executed for a valuable consideration, but it was not evidence of the payment of a consideration as against the plaintiff. Sillyman v. King, 36 Iowa, 207. Upon the evidence, then, we think that the plaintiff was entitled to recover.
If there had been evidence of the payment of a consideration, it is possible that a court should presume, in the absence '-of any evidence to the contrary, that the purchase was made in good faith. In case of the death of the purchaser, we can conceive that a peculiar hardship might result if the persons claiming through him as heirs or devisees were required to show not only payment of a consideration, but also that the purchase was made without notice. But no question of the kind arises in this case.
It is possible that the defendant forgot that the trial was impending, and it is possible that his sickness was such that he was excusable in forgetting it, although it might not have been such as to prevent him from making an application for a continuance if it had occurred to him that it was necessary. Rut a litigant cannot be allowed to resolve to take the chances of a trial with the design of moving for a new trial if the result should be adverse. While the defendant in this case may not have formed such resolution, there is nothing in his affidavit which precludes the idea that he did.
It is further objected by the plaintiff that the defendant’s answer contains no averment under which the evidence of payment by him would, if offered, have been admissible. This position too, we think, is well taken. We think the court did not err in overruling the motion for a new trial.
This case is before us upon rehearing.
Affirmed.
The former opinion filed in the case was inadvertently published. See 51 Iowa, 519. — Reporter.