156 Iowa 643 | Iowa | 1912
The record without substantial ’ conflict tends to show that in the year 1900 the plaintiff, Ruth Sutcliffe, was the owner of a tract of land which she sold and conveyed to the defendant. Prior to said sale, a railroad company had located .and taken possession of a right of way across said land, and Mrs. Sutcliffe had an unsettled claim against said company for damages on account of such appropriation of her property, and such claim was then in litigation. In negotiating for the land, Pence did not wish to assume any responsibility for the lawsuit, and it was orally agreed between said parties that as a part consideration for the conveyance Mrs. Sutcliffe should receive from Pence a payment of $1,800 and that, in addi
At the close of the testimony defendant moved for a directed verdict in his favor on the grounds: (1) The entire failure of plaintiff to show any right of recovery. (2) That the testimony offered, by plaintiff is incompetent because it seeks by parol evidence to vary the terms of a written contract. (3) That the testimony is incompetent because it seeks to contradict the terms of the deed, and it is in contravention of the statute of frauds. ( This motion was sustained, and judgment entered against plaintiff for costs. It is from this ruling and judgment that the appeal has been' taken.
II. In support of the judgment below appellee contends that plaintiff’s claim for a recovery is based upon 'an alleged exception or reservation which she seek to ingraft upon the written deed by parol testimony in contravention of the statute of frauds, as well as in violation of the rule that a written contract can not be so altered or varied. The contention is not justified by the record. The claim she makes in no manner changes or modifies the effect of her deed to the defendant. If in the end she be found entitled to recover, defendant’s right and title to the land described in the deed will not be diminished in the slightest degree. Nothing is reserved from the conveyance, and nothing is excepted from its operation save 'the right of way therein specifically men
Counsel for appellee have favored us with a discussion of the law of easements as affected by conveyances of land, but, for reasons already stated,' we think the subject is in no manner involved in the issues presented for trial.
It is unnecessary to prolong this opinion. Bor reasons we have already explained, the plaintiff upon the record made was clearly entitled to recover the fund in controversy, and the court erred in giving it to the defendant. The judgment appealed from is reversed, and cause remanded for further proceedings in harmony with this opinion. — Reversed.