56 Iowa 139 | Iowa | 1881
I. The petition declares upon an obligation in writing in the following language:
“ On or before the first day of February, 1880, I agree to furnish Oarrie E. Yokom a patent from the State of Texas to the following described real estate, situated in Hale county, Texas; Survey No. 25, block No. D, 6, 640 acres of land on the waters of "White Eeall Creek, a tributary of the Brazos Biver, about seven miles east from center of county, beginning at a mound, the southwest corner of Survey No. 2-2, in same block;, thence S. 1900 ves a mound; thence E. 1900 ves a mound; thence N. ves a mound, the southeast corner of said
“W. S. McBride.
“ Marshalltown, Iowa, October 20, 1879.”
It is alleged that on the 2d day of March, 1880, the plaintiff demanded of defendant the deed or patent described in the obligation, which has not been delivered; “ that plaintiff paid defendant $700, in land, which was understood and agreed to be the value of the land described in the obligation, and defendant agreed to furnish the plaintiff a good title to the land, and represented that the patent which he obligated himself to procure would give plaintiff a perfect title. Plaintiff seeks to recover $700, the amount named in the bond. The defendant in his answer alleges that, being the owner of the certificate of the entry of the land described in the obligation sued upon, he sold and transferred it to plaintiff in exchange for other land; that the trade was completed before the execution of the instrument in suit, and the certificate being duly assigned to plaintiff vested her with the right to the patent for the land; that afterwards without any consideration, and as a gratuity, defendant agreed to procure a patent for plaintiff and thereupon executed the instrument in suit; that he took proper steps to procure a patent, which will be issued in the due course of the business of the officer authorized to convey the land.
Another count of the answer alleges that defendant sold and assigned to plaintiff a certificate of the entry of the lands described, in the obligation, which vested in her title to the land and a right to the patent; that defendant agreed to forward the certificate and procure' a patent to be issued thereon and to secure the performance of this agreement he executed the obligation sued upon; that defendant did forward the certificate to the proper land office in Texas, and it was duly ■filed therein and a patent will be issued in due course of the
The court instructed the jury that if they found the instrument sued upon is based upon ar consideration, defendant is liable for the value of the land received by him from plaintiff, not exceeding the penalty of the obligation .sued on, $700.
Eeversed. .