Hart v. Hart

I. We propose briefly to notice the objections to the decree, which are presented in the written argument submitted on behalf of the defendant.

And, first, it is insisted that, upon the evidence, the court should have corrected the mortgage as prayed by defendant in what he styles his cross-bill.

*601Upon a careful examination we are prepared to affirm, that the evidence falls far short of establishing that by any accident or mistake the instrument in suit reads differently from what was intended by the parties. It is true, that soon after the execution of the instrument the plaintiffs did come to Iowa and for a few months resided with the defendant, but, becoming dissatisfied with the living furnished, or for some other reason, they returned to Pennsylvania in the spring of 1860, and have there ever since remained. But that it was the agreement that unless the plaintiffs came to Iowa and resided with the defendant, they were to have nothing, and that otherwise defendant was to be under no obligation to support them, we do not believe.

Much less is it shown that this was intended to be embraced or set down in the instrument in suit, and was omitted by accident or mistake, as alleged by the defendant.

The defendant’s conduct and acts are against his present claim.

He furnished plaintiffs with money to return, and has since, from time to time, furnished them with money under the agreement, and has claimed and received credit therefor. Not only so, but in his own name he purchased a house in Pennsylvania for his mother to live in, and the value of the use of it was considered by the court in fixing the amounts due the plaintiffs from the defendant.

II. It is next objected that the instrument does not create any personal demand against the defendant, but simply pledges the land; and consequently the court erred in rendering a personal decree against the defendant. The plaintiffs do not complain of the decree. The decree seems to be very carefully framed, and, upon examining it, we find that it does not make or undertake to make the defendant liable beyond the value of the land. The defendant’s objection to the decree, were it conceded to be valid in point of law, is without foundation in fact. Whether the plaintiffs could successfully object to it for this reason, we have no occasion to determine, as they do not, as stated above, make any complaint against it.

III. Finally it is urged that the value of the use of the house in Pennsylvania together with the sums paid plaintiffs, equal the amount of their just and reasonable claims under the instrument in suit.

We think not. The decree below was sufficiently favorable to the defendant in this respect.

It bears abundant evidence of thoughtful consideration and the amount allowed is, to say the least, as small as the evidence or the circumstances would warrant.

Upon the whole we are well satisfied that the case was most equitably disposed of, and the cause is remanded that the decree below, less the credits reported by the commissioner, may be enforced.

Affirmed.