59 Iowa 675 | Iowa | 1882
I. The plaintiff avers in substance in his petition that he bought the lots of one Atkins, and took a bond for a deed; that afterwards, and before any deed was executed by Atkins, plaintiff entered into an agreement with the defendant, who was his son-in-law, to board himself and daughter, as long as they should desire to live with him; that to pay for such board, he agreed with defendant that Atkins should deed to the defendant lot 22; that plaintiff had erected and nearly completed a dwelling house on the lot; that the defendant, under the agreement above set out, moved into it and commenced occupying it as a home; that it had become necessary to borrow some money upon the lots to pay Atkins
The defendant avers in his answer that he borrowed $450, on five years time, and secured the same by executing a mortgage on both lots, and used the money in discharging liens upon the lots and in finishing the house.
The court in decreeing that the defendant should convey lot 23 to the plaintiff, recognized the mortgage and decreed that the lot should, as between plaintiff and defendant be subject to the mortgage to the amount of $151.
"Whether the alleged agreement between the plaintiff and defendant for the conveyance of the lot to the plaintiff is not within the statute of frauds we need not determine. No such question is raised. Both the parties testified, and they substantially agree, that the plaintiff was to pay one third of the mortgage debt. It is not claimed by the defendant, as we understand, that the plaintiff is not entitled to have a deed of the lot upon paying the amount which he agreed to pay. Whether he is entitled to a deed before such payment, depends, of course, upon the agreement. All the evidence which we find upon the point is the testimony of the plaintiff, which is in these words: “I was to pay one-third of the $450, that
■ II. The defendant contends that the court erred in finding that there was anything due the plaintiff for carpenter work and building material, and'in decreeing him a mechanic’s lien therefor.
Neither the petition, nor amendment thereto, contains any averment that the plaintiff performed any carpenter work or other work for the defendant, or furnished him any materials, nor do they contain any averment that there is anything due the plaintiff for such work or materials. There is, then, no foundation laid in the petition for such recovery, and we think that the court erred in granting it.
III. We come now to inquire whether the defendant is entitled to recover anything upon his counter-claim. The court below found that there would be due him, but for the payments made by the plaintiff, the sum of $212.29, being considerably less than the amount claimed by him. We see no reason to question the correctness of this finding. As the amount thus found does not exeeed the amount of payments admitted by the defendant, there does not appear to be anything due him.
Reversed.