48 Iowa 99 | Iowa | 1878
In the ease at bar plaintiffs never even saw the letter. All the knowledge they had of its contents was derived from Johnson. Nor is the letter before us. Nor have its contents been proven except as its contents were declared or stated by J ohnson ; and as it never was delivered, but retained in their pos
We adopt the language used by the court in Johnson v. Brooks, 31 Miss., 17, where it is said: “We have been able to find no cause in which a writing, signed by a party, and kept in his possession without a delivery, has been held to be a compliance with the statute.”
The deed between the parties was a full and complete conveyance of the premises. We are not called on to determine what would have been its effect as a memorandum in writing under the statute. We are not prepared to say that, if it had been delivered and- accepted, an action might not have been brought, and a decree rendered that would have made it effectual as against the world.
III. The court, on the petition of the plaintiffs, ordered the defendants to produce, on the trial, the letter and deed to be used as evidence. This the defendants declined to do, but made a showing why they could "not comply with the order.
IY. A motion is filed by the appellees to strike from the files the reply of appellant to the argument of appellee, on the ground that the cause is triable ele novo in this court, and the plaintiffs and appellees have the burden of proof, and are entitled to the opening and closing argument. Strictly speaking, this is true, and as the motion is made, we cannot disregard it. The motion must be sustained.
The cause will be remanded to the court below, with directions to dismiss the petition, and render a decree for the defendants.
Reversed.