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to all equities and rights, and can enforce them, as though the trust did not exist and he himself were the sole party in interest. These conclusions, we think, cannot be doubted.

Merritt's rights as a partner in plaintiff's contract gan be enforced in chancery only. He may set up his rights as a defence to plaintiff's action to the extent they may reach in diminishing the claim against him. This he may do by what is called an equitable answer. The question now arises as to the manner of trying the issue presented by this equitable answer, and the other issues in the case arising upon plaintiff's petition.

Code, § 2517, provides as follows: "Where the action has been properly commenced by ordinary proceedings, either party shall have the right, by motion, to have any issue heretofore exclusively cognizable in equity tried in the manner hereinafter prescribed in cases of equitable proceedings, and if all the issues were such as were heretofore cognizable in equity, though none were exclusively so, the defendant shall be entitled to have them all tried as in cases of equitable proceedings." This section provides that issues exclusively cognizable in equity shall be tried as equitable proceedings; i. e., by the court without a jury. Other issues not cognizable in equity are to be tried as issues at law; i. e., by a jury.

This is the obvious meaning of the section. In actions at law, therefore, when equitable issues are presented they are triable as in chancery; pure issues at law, which are not cognizable in equity, are to be tried to a jury. Such is the interpretation which this court has given the section. Tan Orman v. Spofford, Clark & Co. 16 Iowa, 186; Byers v. Rodabaugh, 17 Iowa, 53; Hacket v. High, 28 Iowa, 539; Kramer v. Conger, 16 Iowa, 434.

In some of these cases it is said that the equitable issues should be first tried. This course, we presume, should be pursued when the trial of the equitable issue in a certain event would dispose of the case. But if the trial of the law issue would, in the event of a verdict for one of the parties, render a trial of the equitable issue unnecessary, in that case the issue at law should be first tried. The issue, either equitable or at law, should be first tried, which may result in rendering a further trial unnecessary. This rule is supported by reasons based upon the economical and speedy administration of justice. If a single trial will dispose of a case, the law will not permit another. If the disposition of one issue may finally settle the rights of the parties, it should be first

tried, to the end that further proceedings may be dispensed

with.

3. It only remains for us to inquire whether the issues arising upon the petition of plaintiff were cognizable in equity. These issues involve the breach of the contracts, the failure of defendants to pay for the ties delivered, and their default as to obligations they assumed under the contract. The plaintiff claims nothing more than the damages awarded by the law for such breach and default. His petition, therefore, presents no other than issues solely cognizable in a court of law. The court below was not, therefore, authorized to regard all the issues of the case as equitable issues and try them accordingly. It should have so proceeded that a trial of the law issues arising upon the petition would have been had first, and in the event of a verdict for plaintiff it should then have tried the equitable issues arising upon the answer of defendant Merritt. For the error of the court below in trying all the issues of the case without a jury, in the manner above pointed out, the judgment is reversed, and the cause is remanded for proceedings in harmony with this opinion. Reversed.

J. B. DARLAND, Administrator, etc., Appellee, vs. W. H. TAYLOR, Appellant.

Filed December 6, 1879.

Plaintiff's intestate held certain notes of defendant, her grandson. One night, some time before her death, and fearing that she might die leaving the notes, she got up and destroyed the same, declaring repeatedly afterwards that she did not wish that he should have them to pay after her death. Held. a valid gift, causa mortis.-[ED.

Appeal from Poweshiek circuit court.

The plaintiff, as the administrator of the estate of Alsey Darland, deceased, claims of the defendant, W. H. Taylor, the alleged purchase price of a certain eighty acres of land. The cause was tried by the court as an action in equity. The court found for the plaintiff and rendered a judgment in his favor for the sum of $640. The defendant appeals. The facts are stated in the opinion.

Lafferty & Johnson and Redman & Carr, for appellant.
Bolton & McCoy, for appellee.

DAY, J.-The material facts established by the evidence are as follows: Alsey Darland died on the twenty-fifth day of February, 1872, at the age of about 73. She was the mother

of Martha P. Taylor, who was the mother of J. D. Taylor and the defendant, W. H. Taylor. Martha P. Taylor had for many years been a widow, and was insane. Alsey Darland had taken care of her daughter ever since she became insane, and had raised her two sons, J. D. and W. H.

On the twentieth day of July 1869, Alsey Darland, in order to make permanent provision for the future support of her daughter, Martha P. Taylor, conveyed to her grandson, J. D. Taylor, eighty acres of land. The price agreed upon for this land was $1,600, of which J. D. Taylor paid $300 and agreed to pay $300 more, and was to have the use of the remaining $1,000 for supporting his mother du: ing her life-time, and at the death of his mother, Martha P. Taylor, this $1,000 was to go to J. D. Taylor's children. Pursuant to this arrangement, J. D. Taylor supported his mother for a time, but finally he left the place, rented it out, and ceased to maintain his mother, and Alsey Darland became dissatisfied. Sometime about the first of January, 1872, it was arranged between Alsey Darland, W. H. Taylor and J. D: Taylor that W. H. should purchase the interest of J. D. in the property, and assume his obligation for the support of their mother. In accordance with this arrangement W. H. paid J. D. $450, the amount of the payment which he had made, and of some improvements which he had placed upon the land, and assumed the payment to Alsey Darland of the deferred payment of $300 and interest. The balance of the consideration, $1,000, he was to have for supporting his mother.

W. H. Taylor has supported and cared for his mother ever since this arrangement was made. A short time after this arrangement was made W. H. Taylor tendered to Alsey Darland his notes for $400 for the unpaid purchase money. She refused to take the notes, saying that if she wanted anything she could get it as well without a note as with it. Alsey Darland having refused to take the notes, her son, William L. Darland, took them and looked them up. Two or three weeks thereafter Alsey Darland called for the notes, and her son delivered them to her. About the first of February, 1872, which was a little more than three weeks before her death, she tore the notes up. The next morning, at the breafast table, she stated that she could not sleep the night before until she got up and tore up the notes on W. H. Taylor. When asked what she did that for she said that she felt unwell, and thought she was liable to die at any time, and if she died she did not want W. H. Taylor to have those notes to pay.

At the time Alsey Darland refused to accept the notes she was talking of going to Oregon, and she then told the defendant if he would pay her $300 she would not charge any interest. Afterwards the defendant told his grandmother that he had spoken to some one to borrow the $300 for her, and she then said that $300 or $400 would not get the notes; that she had destroyed them; that she thought she would not live very long, and she didn't intend to leave anything for her children to quarrel over. At the same time she said she did not want the defendant to pay the notes. About two weeks before her death Alsey Darland was taken from her son's (W. L. Darland's to the defendant's. She took sick the next day, and remained ill until her death.

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During this time she said that she wanted the defendant to have what she had for keeping his mother; that his mother would not stay at any other place; that she was studying about a note she had; that she thought about the note while she was staying at William L. Darland's, one night after she went to bed, and thought she would get up and destroy the note so her children would not get it; that she did destroy the note so her children would not get the property and that W. H. Taylor would get it; that she intended for W. H. Taylor to have it. The court below held that declarations of deceased are insufficient in themselves to establish a gift; that the recovery of the deceased after the night on which she destroyed the notes operated as a revocation of the so-called gift; that there was no delivery or acceptance, and that the evidence does not show clear and unmistakable proof of a gift. Judgment was accordingly entered against the defendant for the amount of the notes and interest, $640.

The court grounded the opinion that the declaration of the donor is in itself ineffectual to establish a gift upon Burney v. Ball, 24 Ga. 505. What is there said upon the subject is as follows: "Our opinion is that the declarations of the donor that he had given are always admissible in evidence in cases of this sort. We have heretofore held, and still hold, that they are insufficient of themselves to establish a gift. To constitute a good and valid gift there must be a delivery, actual or constructive, or, as it is termed sometimes, symbolical, or a writing." It is evident from the foregoing that the court simply determined that the declarations of a donor that he had made a gift is not sufficient without some proof of delivery, actual or constructive. It is not held nor intimated that the declaration of the donor is not admissible to estab

That

lish the facts from which a delivery may be inferred. such facts may be established by the declaration of the donor we do not doubt. The court further held that there was no delivery or acceptance of the gift, and that both are The authorities hold that the delivery may be

necessary.

actual or symbolical.

In Garrigan v. Auden, 10 Johnson; 292, a father bought a ticket in a lottery, which he declared he gave to his daughter, and wrote her name upon it. After the ticket had drawn a prize he declared that he had given the ticket to his child and that the prize money was hers. This was held sufficient to authorize a jury to infer all the formality requisite to a valid gift, and that the title to the money was complete and vested in the daughter. In Gardner v. Gardner, 22 Wendell, 525, a debt contracted by the wife was held to be discharged as a gift, causa mortis, by the husband's destroying the bond, the evidence of the debt, and declaring that the money was hers. See also Blaisdell v. Locke, 52 N. H. 238. In Hillebrant v. Brown, 6 Texas, 45, when the father branded certain cattle in his son's name, and recorded the brand, it was held sufficient to establish a symbolical delivery. The destruction of the notes, together with the repeated declarations of the deceased that she did not intend the defendant to pay the debt, constitute a sufficient delivery under the authorities cited. As the gift was for the benefit of the donee, and coupled with no condition, his acceptance of it, from all the circumstances proved, in the absence of any opposing testimony, must be presumed. Blaisdell v. Locke, 52 N. H. 238 (244.)

The court further held that the gift was made by the donor in apprehension of death before morning, and that as she did not die there was a revocation of the gift. The evidence does not at all sustain the position that the gift was intended to be operative only in the event of the death of the donor before morning. Upon the contrary, the evidence clearly shows that the deceased desired to discharge the defendant from liability upon the notes, and that the destruction of the notes was made at the time in question because she feared that she might die before morning, and thus be prevented from discharging the defendant as she desired. Afterwards, and during her last sickness, and but a short time before her death, the deceased declared that she had destroyod the notes so that W. H. Taylor would get the property, and that she intended him to have it. There was not, we think, any (513)

v3-33 (no. v)

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