O'Neil v. Vanderburg

Plaintiff’s action was at law. His petition was substantially in conformity with section 8570, of the Bevision, claiming a-fee simple ownership. The defendant denied the plaintiff’s title and claimed to be himself the owner. The only issue made under the pleadings was which of the two parties held the legal title and right of possession.

*107Plaintiff’s counsel have argued the cause as if it involved, which it does not, the equities of the respective parties; and if it did, on the evidence before the court, the superiority of the defendant’s title was not overcome.

"We propose to notice simply the rulings to which exceptions were duly taken.

1. etibehoe : declarations of third party, 1. There was no error in excluding the testimony as to the admission of Atkinson respecting the trustee’s sale. He had ceased to have the title, which was in , , . , , . another, who was not present when the admission was made, and who would not, therefore, prima, fade, be bound by it, and who was not proposed, so far as shown by the record, to be connected with such admission. Such evidence might, under certain circumstances, be proper, as a link in a chain of testimony; but standing alone it would have been inoperative if admitted. Hence, we cannot reverse the judgment because it was rejected.

2. It is quite clear that the legal title passed to Bailey, the trustee, from him to "Ware, from Ware to Mrs. Atkinson, and from the latter to the defendant.

The clerical error in the trustee’s deed as to date of posting notices of sale would not invalidate it.

The deed was executed by the trustee in the form prescribed by the power contained in the deed of trust, and had the effect to pass the legal title.

2. convexanoe: ?nterestP£iistona and wife. 3. The subsequent purchase of the property by the wife would not inure to the plaintiff, as the previous Sran^ee the husband, although the wife had joined in the prior conveyance for the purpose 0f relinquishing her dower. This point is the same as that decided in Childs v. McChesney (20 Iowa, 431).

If the wife made this purchase with the husband’s money, it would, at least in equitv, as against the hus*108band and wife, inure to the plaintiff; and it would have the same effect, as respects the defendant, if he purchased from the wife, with notice of the fact.

But the plaintiff made no proof that the wife’s purchase from Ware was made with her husband’s means. If it be granted that such an inquiry was proper in the present action, the duty of showing that the purchase by Mrs. Atkinson was not made with her separate money was. on the plaintiff. The plaintiff did not show this. The proposed admission of Atkinson, if it were regarded as 'in the case, would not be sufficient to defeat the title of the> defendant.

Without prejudice to the equitable rights of the plaintiff, if any she has, the judgment below is

Affirmed.