Tinsley v. Tinsley. was vested in him. These actions were consolidated, and a trial of the issues was had to the court. The relief asked by both the plaintiff and defendant was granted, and the defendant appeals from that portion of the decree foreclosing the vendor's lien, and M. C. Tinsley appeals from that portion. which decreed a conveyance of the real estate to the defendant. Seevers & Malcolm and Williams & McMillen for appel lant. Crookham & Gleason and M. C. Tinsley for appellee. SEEVERS, J.-About the time of her marriage to M. C. Tinsley, the defendant was possessed of $700, and shortly thereafter she sold some real estate and received $50 in cashı and a note for $100 therefor. She and her husband purchased of the plaintiff forty acres of land, and paid thereon nearly $550. The residue of her money, except the note, was either expended in improving the land or for the support of the family. It is not The land How much she actually paid as purchase-money on the land and for improvements is a matter of some doubt, because her testimony and that of her husband is in direct conflict. But after a careful consideration thereof, including the declarations of M. C. Tinsley made to others, we conclude that the preponderance of the evidence is in favor of the proposition that she furnished all the money that was paid on the land. deemed necessary to refer to this evidence in detail. was conveyed by the plaintiff to M. C. Tinsley. there was an agreement it should be conveyed to the defendant is uncertain, and it is immaterial whether there was such an agreement or not. That she expected it would be conveyed to her, we incline to believe. The money was paid directly for the land. It was not given to her husband, nor did it go into his possession as his property. Whether We have then the common case of one person furnishing the money with which real estate is purchased, L CONVEY- taken in an- and the title conveyed to another. Equity will compel the latter to convey to the former. II. The defendant claims that the purchase price of the Tinsley v. Tinsley. real estate was about $580, and that it was all paid at the time or before the deed was made. On the other hand, the plaintiff claims the price was $850, and that M. C. Tinsley executed to him a note for about $300, being the residue of the purchasemoney not paid. The testimony is exceedingly conflicting as to which of these theories is correct. If the declarations of M. C. Tinsley were admissible as evidence against the plaintiff, we are by no means sure but that the preponderance would be in favor of the theory of the defendant. But excluding such declarations, the preponderance of the testimony is with the plaintiff. 2. mortgage. This being true, it follows that the plaintiff is entitled to the establishment and foreclosure of a vendor's lien for the : ven- unpaid purchase-money, unless section 1940 of the Code, which provides that a vendor's lien shall not be enforced after a conveyance by the vendee unless such lien has been reserved by conveyance, mortgage or other instrument duly acknowledged and recorded," takes away such right. After the conveyance to M. C. Tinsley, he and the defendant executed a mortgage on the land to one Cornell, and it is insisted that a mortgage is a conveyance, and by reason of its execution the plaintiff' was deprived of his right to enforce the vendor's lien. That a mortgagee is a purchaser within the recording laws was held in Seevers v. Delashmutt, 11 Iowa, 174. But whether a mortgage amounts to the conveyance by the vendee contemplated in the foregoing statute, is regarded as doubtful. As between the vendor and mortgagee the statute affords the latter ample protection, and such without doubt was the legislative intent. But the statute does not as between the parties take from the vendor his lien. It, however, only operates and takes effect on the equity of redemption, the lien of the mortgage being superior thereto. III. The Circuit Court, through inadvertence we think, rendered a personal judgment against the defendant for the amount of the unpaid purchase-money. This was manifest error, for the reason the defendant never personally obligated herself to pay the same. The result is that on the appeal of Tinsley v. Tinsley. M. C. Tinsley the judgment must be affirmed, and on that of the defendant modified. A decree may be entered in this court at the option of either party if exercised within thirty days from the filing of this opinion. Otherwise the cause will be remanded to the court below, with directions to enter a decree in accordance with this opinion. The defendant will recover her costs in this court. MODIFIED AND AFFIRMED. 3. : ON REHEARING. SEEVERS, J.-After the execution of the conveyance by the plaintiff to M. C. Tinsley, the latter and Charity L. Tinsley executed a mortgage on the land therein described to one Cornell to secure a note executed by the plaintiff and M. C. Tinsley for $500. In this mortgage was included a parcel of land owned by the plaintiff, and he joined therein and got $300 of the money the mortgage to Cornell was given to secure. Because of the existence of the foregoing facts, counsel for Charity L. Tinsley have filed a petition for a rehearing, and insist the plaintiff is not entitled to a vendor's lien except for such sum as may be due him exceeding the said amount of $300 his property was mortgaged to secure. The plaintiff and M. C. Tinsley borrowed of Cornell $500 and gave their joint note for the same. To secure this note all the parties joined in the mortgage. There is no pretense any of said money has been paid. To Cornell the plaintiff is liable for the whole, and Charity L. Tinsley's property is also liable. If she hereafter pays the whole amount, or if the same is realized by a sale of her property under the mortgage, the plaintiff would be bound to repay her the said sum of $300 and interest. But for aught that is now known, the plaintiff may be compelled to pay the whole amount to Cornell. Until Mrs. Tinsley has paid something on the mortgage to Cornell she has no claim on the plaintiff, nor can the latter's lien be affected by a contingent liability that may never be enforced to her prejudice. The petition for a rehearing is overruled. VOL. LII-2 Lane v. The B. & S. W. R. Co. LANE V. THE B. & S. W. R. Co. 1. Practice: AMENDMENT: WAIVER OF ERROR. The filing of an amendment to a pleading which has been held insufficient upon demurrer, is a waiver of the right to assign the sustaining of the demurrer as error. 2 Pleading: AMENDMENT. Where an amendment to a petition to which a demurrer had been sustained stated no further facts, but merely conclusions of law from the facts before pleaded, held, that a motion for more specific statement was properly sustained. Appeal from Appanoose District Court. WEDNESDAY, OCTOBER 8. THE petition states that the plaintiff, an employe of the defendant, with other employes, was engaged in constructing a turn-table, and while so doing the employes of defendant so engaged with the plaintiff, "negligently and carelessly, without using due care, but with gross negligence, pushed and threw from its balance a heavy piece of timber known as piling, on the hand of plaintiff, plaintiff at the time using due care in handling said timber," whereby the plaintiff was greatly damaged. To recover his damages this action was brought. To the petition the defendant demurred on the ground that "the petition shows plaintiff was not engaged as an employe of defendants in the hazardous operation of defendant's railroad at the time he received his alleged injury." The demurrer was sustained. An amended petition was assailed in the same manner, on the same ground, and with the same result, whereupon the following was filed: "Plaintiff for a second amendment to his petition making his original petition and first amendment to said petition, and this his second amendment as his petition, states that the plaintiff was engaged in the use and operation of the said railroad, that his employment was subject to the incidents of operating a railway and the hazards thereto belonging.' The defendant thereupon filed a motion for more specific statement and asked that plaintiff be required to state, "in Lane v. The B. & S. W. B. Co. what way did plaintiff's employment subject him to the incidents and hazards of operating defendant's road? In what way was plaintiff engaged in operating defendant's road?" This motion was sustained, and plaintiff electing to stand on his petition judgment was rendered against him for costs, and he appeals. Geo. D. Porter, for appellant. Vermillion, Haynes & Vermillion, for appellees. 1. PRACTICE: amendment: Waiver of error. SELVERS, J.-I. By filing a second amendment to his petition after a demurrer had been sustained to the original and first amendment, the supposed error because of the ruling on the demurrers, is deemed waived. This rule has been enforced by repeated decisions of this court. It is unnecessary to cite them. That the demurrers were in all probability correctly sustained, see Schroeder v. C., R. I. & P. R. Co., 41 Iowa, 344; Potter v. Same, 46 Iowa, 399. 2. PLEADING: II. It is a fundamental rule that a pleading must state facts from which the conclusions can be drawn that the party is entitled to the relief asked, or to maintain the deamendment. fense interposed. The original and first amendment to the petition had been held insufficient. The second amendment set up legal conclusions from the facts previously stated. The motion for a more specific statement was, therefore, properly sustained. As the pleadings then stood the plaintiff, in the opinion of the court below, was not entitled to recover. It is a mistake to suppose the effect of the ruling of the court was to require the plaintiff to set out his evidence. He was merely required to state a fact or facts showing his right to recover. AFFIRMED. |