
    Ayres v. Campbell.
    Where the record does not disclose what part of the instructions of the court below, were given, or what refused, or whether, all were given or refused, this court cannot consider any assignment of error having reference to such instructions.
    Where, in an action to recover the rents and profits of real estate, both parties claimed title from J. 0.,-and the, defence set up, was; That the deed under which plaintiff claimed had never been delivered; that two hundred dollars was to be paid by plaintiff to a third person for the benefit of the said J. C. before the deed was to be delivered; that plaintiff wrongfully obtained the possession of the deed, without paying the money; that one of the defendants was surety for the payment of this money; and that, in consideration of his having to pay said sum, the said 0. had transferred to him a title bond he held for the lot, and all his interest therein; and where the defendants to prove this defence, offered the said 0. as a witness; EM, that the witness was interested, and, therefore, incompetent.
    
      Appeal from the Pol!c District Court. •
    This suit was brought to recover the rents and .profits of certain real estate described in the petition. The defence set up was substantially as follows: That one Joseph Crews-purchased the said lot of the board of commissioners of Polk county, about the 17th of February, 1847, for about forty dollars, one-sixth of which sum he then paid down, and was to pay the balance in three equal installments of six, twelve and eighteen months; that the said board executed to him a bond, conditioned to make, him a deed to said lot upon final payment being made tberefor; tbat said Crews immediately took possession, and erected valuable improvements thereon; that on the 19th day of January, 1849, .said Crews being indebted to one Jacob Frederick in the sum of two hundred dollars, James Campbell, one of the defendants, and one W. A. Scott, at the request of said Crews, became security for the payment of said money, with interest, to said Frederick; that in consideration of the said Campbell and Scott having become bis surety, and of one hundred dollars received of them, and to secure them, in case they, or either of them, should have said sum to pay, said Crews executed to said Campbell and Scott, a mortgage on said lot and improvements, conditioned that if the said Crews shall save said Campbell and Scott harmless from the payment of said two hundred dollars, with interest and costs, the said mortgage should be void: that said Crews failed to pay said money; that after the condition of said mortgage had been forfeited, the said Crews being anxious to pay said debt, about the 7th day of March, 1849, made an arrangement with the plaintiff, to sell and convey to him said lot, in consideration, and upon the express condition, that said plaintiff would pay therefor about the sum of four hundred and fifty dollars, in manner following: about thirty-five dollars to the county of Polk — that being the balance of the purchase money then due on said lot; pay off said sum of two hundred dollars, with interest, due to Frederick, and about •one hundred and eleven dollars to James Lacy; and the balance, from eighty to ninety dollars, said plaintiff was to pay to said Crews; that by the terms and the conditions of the said contract of sale, the said plaintiff was to pay eaeh and ■all of said sums of money, before he was entitled to receive the deed for said lot; that the said Crews then went with said plaintiff, to the office of the clerk of the board of commissioners of said county, with a deed, with the name of said plaintiff as grantee, and had the same ready for delivery to him, upon his complying with the conditions of said contract; that .said plaintiff then paid said sum of thirty-five dollars to the said county; and said Crews, supposing that said plaintiff intended to perform the conditions of said contract, left said •office, to get the bond of said board which he held for said lot, and while said Crews was absent for said bond, the said plaintiff, without having complied with his said contract, and without the consent or authority of said Crews, took and ■carried away the deed so made by Crews, and had the same placed upon record; that the said plaintiff has not paid for said lot, and the said sum of two hundred dollars, or any part thereof, has not been paid by said plaintiff to said Frederick. The answer then goes on to allege, that said Crews never delivered tbe bond from tbe board of commissioners for said lot, to tbe clerk of said board; that tbe said Campbell bad to pay to tbe said Frederick, tbe said sum of two hundred dollars, witb interest; and tbat tbe said Crews subsequently sold tbe said lot, and delivered tbe said title bond to tbe said Campbell, wbicb Said bond basbeen lost or mislaid. Some other matters are set up in tbe answer, not necessary to be bere noticed. ■ To- tbis answer ’a replication was filed, and to tbe replication, a rejoinder. On tbe trial,, before a jury,, tbe defendants called Joseph Crews, as a witness.- Tbe plaintiff objected to tbe witness, on tbe ground of interest, wbicb objection was overruled, and tbe witness permitted to testify, to wbicb ruling- tbe plaintiff excepted. Tbe jury returned a verdict for tbe defendants, upon wbicb, after a motion to set aside tbe verdict was overruled, judgment was entered. Tbe plaintiff appeals, and: in this court, assigns tbe following errors:
    1. In admitting tbe witness- Crews, to testify -
    2. In giving tbe instructions asked by defendants;
    3. In refusing tbe instructions asked by plaintiff.
    
      Jewett & Knapp,. for appellant.
    
      Bates & Finch, for appellees.
   Isbell, J.

-The questions attempted to be raised on tbe instructions of'the court in tbis case, we cannot consider,, for tbe reason tbat tbe record does not disclose what of tbe instructions were given, or what refused, or whether all were given or all refused.

Tbe only substantial question for our consideration, is, does tbe record disclose such an interest in Joseph Crews, as to disqualify him as a witness for tbe defendants ? Tbe action is brought to recover tbe rents and profits arising from lot 2, in block 36, in Port Des Moines, which the plaintiff alleges has been, from the 7th day of March, 1849, his property, and that he has been from that time entitled to the rents and profits; and that the defendants have held the same, and received the rents and profits to the amount of nine hundred dollars.

. The ease has not been argued at length, and we are left to wade through voluminous pleadings to reach a point, and if any fact, that should influence our determination, has escaped our attention, that must be our excuse. Without reciting this mass of pleading, we think that we may confidently say, that both plaintiff and defendant attempt to derive their right to the possession of the premises, and con■sequently to the rents and profits, from the witness. That the following facts are put in issue, among others: that the deed by which plaintiff claims was never delivered; that $200 was to be paid by plaintiff to one Frederick for the benefit of witness, before the deed was to be delivered; that plaintiff wrongfully obtained possession of the deed, without paying this sum; that one of the defendants was surety for the payment of this sum; and that, in consideration of his having to pay it, witness transferred to him a title bond he held for the lot, and all his interest in the lot.

Now, if it were not true that the deed was wrongfully obtained, or if it had been delivered, and plaintiff had not contracted to pay this two hundred dollars, it would appear quite clear that the consideration for paying the debt to Frederick by Campbell, had failed, and that witness would be liable to refund the money so paid by Campbell, as his surety; and, on the other hand, if the deed had not been delivered, and plaintiff was liable to pay this two -hundred dollars to Frederick, before he was entitled to a deed, then, witness had a subsisting interest in the lot, which, if Campbell acquired, would secure him against the payment of this debt, and the consideration for paying Frederick had not failed. "We, therefore, conclude that the witness was so interested, that he was incompetent to testify, unreleased by Campbell, Judgment reversed. 
      
       Weight, C. X, having been of counsel, in the court below, took no part; in the decision of this eause.
     