Tugel v. Tugel

38 Iowa 349 | Iowa | 1874

Beck, J.

— We are well satisfied by the evidence of the fraudulent character of the conveyance by defendant Tugel to his co-defendant Tagen; that it was without consideration, and made to defeat the claim of plaintiff. The evidence is equally clear in support of the charges made in the petition as to the misrepresentations and fraud of the son in relation to the writing executed to the father, and of his agreement to make and deliver a mortgage to secure the debt. The effort of the son to support his defense, that the writing was not executed by him, entirely fails. The indebtedness of the son is clearly established; in tact, it is not denied by him.. A discussion of the evidence upon these issues of fact we will not attempt, but content ourselves with stating our conclusions thereon.

practice: objection to íomm. I. It is first insisted that plaintiff’s remedy is at law, which would afford him relief by a judgment for the amount of his claim for the money borrowed by the son. , •' J JLhis may be admitted, and that his remedy should have been sought in that way. It was sought, however, in this action without any objection in the court below to the forum. It is too late now to interpose such an objection. Rev. § 2613, Code 2514. Van Orman v. Merrill, 27 Iowa, 476; Balis v. Calvin, 17 B. Mon. 167.

II. It is next claimed the evidence establishes the intention of the parties to the effect that the instrument executed by the son was only to be effective at his death. We are spared the consideration of the effect of the instrument viewed in that light, as we do not find the evidence supports such a conclusion of fact.

No other points are presented in the case demanding consideration. The judgment of the District Court is

Aeeirmed.