Sinclair v. Walker , 38 Iowa 575 ( 1874 )

Day, J.

conveyance: gage.' — The evidence is too voluminous to be all reviewed within the proper limits of an opinion. Some of it is inconsistent with any view of the case. No conclusion can be reached which does not involve a rejection of some of the testimony. In this respect the case is like almost every one which involves facts to be established by evidence. In such cases, if the mind should adopt no conclusion against which objection exists, no conclusion would ever be reached. Certainty is not attainable. Each member of the court has given the evidence submitted a careful perusal, and we unite in the conclusion that it sustains the judgment of the court below, and establishes the fact that the transaction was a sale to "Weare. The burden of proof is on the plaintiffs. Before a deed absolute upon its face can be declared a mortgage, the evidence must be clear and satisfactory. See Corbitt v. Smith, 7 Iowa, 60 and cases cited; Cooper v. Skeel et al., 14 Iowa, 578; Gardner et ux. v. Weston, 18 Iowa, 533.

The facts that no note or evidence of indebtedness was given, that the time of re-payment was not definitely fixed, .and that Curless became a tenant of Weare under a written.lease of the property, tend strongly to support the conclusion that the transaction was a sale. In addition to these is the fact that the amount paid, about $1200, was very nearly the full value of the land, for Curless testifies that he offered to sell it for $ 1500.

There is also the positive testimony of Weare and Stanch-field that the sale was absolute; and the declaration of Curless that he had sold and was going to California. Further, the reputation for truth of Curless, the principal witness on behalf of plaintiffs, is impeached by five witnesses, and his general moral character by one, and he is sustained by none. It is urged that if the money paid Curless was borrowed of the bank by Weare and tlie deed executed to Walker to secure this loan, the whole transaction is vitiated, because the 'bank had no authority to accept real estate as security for a loan.

This position is not well taken. The transaction between Curless and Weare cannot be affected by the means through which Weare obtained the money to pay for the property. That is a matter solely between Weare and the bank.

We could not fully review the evidence without extending the opinion to undue length. We have read it carefully, and we feel satisfied with the result.

Affirmed.