62 Iowa 159 | Iowa | 1883
The defendant, E. A. Smith, entered into a negotiation with the plaintiff, through his agent, one Ells-worth, for the purchase for E. A. Smith’s wife, the defendant L. B. Smith, of eighty acres of land. The price was agreed upon and certain papers drawn, including the notes and mortgage in question. A deed was made by the plaintiff, running to the defendant, L. B. Smith. The notes and mortgage passed into Ellsworth’s hands, and the deed passed into the hands of E. A. Smith, who was acting for his wife; but, im-meditely upon inspecting the deed, he objected to the same. The deed contained covenants merely of special warranty; that is, covenants merely against the grantor’s own acts; and
We are satisfied, however, that the preponderance of the evidence is in favor of the defendants. Ellsworth in his testimony says: “I was to start next day from home for three months, and évery thing was closed up hurriedly.” Under such circumstances, we can easily conceive that his memory might not be as reliable as it would be under other circumstances. He says, in deed: “We had a good deal of talk on that day about it, the details of which I can’t recollect.” What is more, his testimony in some respects corroborates Smith. He remembers that it was ascertained at the time that Ware’s title was only a tax title; that Ware’s deed was not satisfactory; that it was submitted to an attorney, who declared that it was simply a quit claim; that Smith expected to get a good title, as he claimed that he was paying more than the land was worth; that there was a good deal of talk about a warranty deed, and the responsibility of Ware; that hetold Smith that Ware was a large land holder in Iowa, and he would consider his warranty deed good. We think that the transaction was not consummated, and that the papers drawn passed wrongfully into Ware’s hands, and did not take effect.
Affirmed.