55 Iowa 715 | Iowa | 1881
— The petition states that in 1875 John Nolear purchased certain described real estate for a homestead for himself and family; that he paid therefor, and for a dwelling-house erected thereon, with money belonging to his children, but as a matter of convenience the conveyance was made to him for the use and benefit of his children, and the said premises were occupied as the homestead of said Nolear and his family; that in August, 1876, Nolear executed a mortgage on said premises to Wilson & Co., as security for the payment of indebtedness incurred for lumber used in erecting a dwelling-house on said premises; that in August, 1876, said Nolear sold and conveyed said premises to the plaintiffs, who, .as a part of the purchase money, assumed the payment of said mortgage, and thereafter paid the same to Wilson & Co., who assigned the mortgage to the plaintiffs, who thereby became subrogated to all the rights of Wilson & Co.; that since they purchased said premises plaintiffs have made necessary imj>rovements thereon to the value of $305; that in April, 1876,
The material allegations of the petition were denied by the answer, and it -was therein alleged the debt upon which the Mast & Co. judgment was rendered was incurred in 1871. Counsel for appellants insist:
II. It is urged Nolear purchased the premises with the proceeds of a former homestead. There is no sufficient evidence to warrant this conclusion. The debt to Mast & Co. was incurred before the premises in question became the homestead of Nolear, and that it is liable and may be sold for the payment of such debt is expressly provided by statute. Code, § 1992.
III. Finally, counsel urge that although Nolear had the legal title the purchase money was furnished by his children, and the land, therefore, in equity belonged to them. In support of this proposition the evidence of Nolear is largely relied on. We have examined such evidence, and all other introduced by the plaintiff, with care, and without reference to that introduced by the defendants, the proposition above stated has not been established by such clear and satisfactory evidence as is required in such cases. Trout v. Trout, 44 Iowa, 474; Burns v. Byrne, 45 Id., 285, and authorities cited.
Affirmed.