42 Iowa 229 | Iowa | 1875
I. The plaintiff took, and offered in evidence on her own behalf, the deposition of Adam Gebhert, who, amongst other things, testified that the circumstances under which the conveyance 'of the land in controversy was made to Henry Shellenberger, were substantially as alleged in the petition. The defendant, Reigart, and the Shellenbergers filed their motion excepting to this portion of the deposition of Gebhert upon the ground that, when his deposition was taken, he was interested in the. result of the suit adversely to the said defendants, and therefore was not a competent witness against them as to matters which transpired before the death of said Henry Shellenberger; and upon the further ground that Gebhert is a person from, through and under whom the plaintiff derives an interest in and title to the property which she seeks to recover in this action. This motion was sustained so far as the deposition of said Gebhert relates to personal transactions had by him with Shellenberger in his lifetime.
This ruling the plaintiff assigns as error. The objection to this testimony is based upon section 3639 of the Code of 1873, which provides that “ no party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, * * * against the executor, heir at law, next of kin,” etc.
II. Even’ without the excluded testimony of Gebhert we
III. It is urged that plaintiff’s petition should be dismissed because she makes no offer to pay the acknowledged debt. She does, however, allege and prove a tender of the amount advanced, with interest, and the taxes paid upon’ the property. This, we think, is sufficient. The decree for conveyance will be upon condition of full payment, and if that be not made within sixty days from date of decree, thatplaintiff’s rights in the property be foreclosed. Plaintiff may have a decree in this court, if she so elect.
Reversed.