164 Iowa 635 | Iowa | 1914
The right of way in controversy was considered in this court in Arbaugh v. Alexander, 151 Iowa, 552. It is the claim of plaintiff that in 1903, he being then owner of a farm in Harrison county, and the defendant F. M. Alexander being the owner of a forty-acre tract cornering thereon, they entered into an agreement whereby a way was opened from plaintiff’s land across a portion of defendant’s land to the public highway, the same to be for the use and benefit of both parties and of others who might choose to make use of the same, and that, in consideration of plaintiff’s undertaking to build a bridge thereon and to keep the same and the way in repair, plaintiff’s right to use the same should continue so long as said Alexander should live or.so long as he remained the owner of the land. The evidence tends to show performance of his promise by the plaintiff, and that the way was used in common by him and Alexander for several years. On April 14, 1910, the said F. M. Alexander by warranty deed conveyed the land to his wife, Katie Alexander; but the deed was withheld from record. In June, 1910, plaintiff brought action in the district court against the defendant F. M. Alexander, charging him with wrongfully obstructing said way, and praying an injunction against such interference with plaintiff’s use thereof. A demurrer to that petition, on the ground that the alleged agreement was within the statute of frauds, and without consideration, was sustained. On appeal to this court, the judgment below was reversed and cause remanded for further proceedings. Thereafter the cause came on for trial in the district court, where the issues were decided in plaintiff’s favor on November 7, 1911. A few days prior to said trial and judgment, the deed to Katie Alexander was placed on record. Shortly thereafter, and after the final judgment in the former case, the defendants, or one of them, again closed the way against use thereof by the plaintiff, and this action was begun making both husband and wife defendants. The petition restates the agreement by which the right was obtained and alleges that the conveyance
But unfortunately for the appellant, there is no evidence in the record laid before us to sustain such a finding. The deed of conveyance bears date two months before the inception of the litigation between the parties to these lawsuits, and no attempt is made to show that the date of the instrument is not the true date of the transaction. Nor is there
While the consideration named in the deed is "love and affection” and the payment of a merely nominal sum of money, it is legally sufficient to sustain the conveyance, and, so far as anything is disclosed by the instrument itself, its delivery to the grantee had the effect to vest her with absolute title and ownership, and thereafter the husband’s only interest in the land was his statutory contingent right to a distributive share therein, should he survive his wife.
Fraud will not be presumed. There is nothing shown nor do counsel point to any fact tending, as they claim, to show a fraudulent purpose on part of defendant’s except the fact that the deed was in the nature of a gift conveyance to the wife and was shortly before the beginning of the original suit.
Plaintiff is not a creditor who can object to a voluntary conveyance by the defendant. He had no lien on the property. Whatever rights he had in the premises alluded to were dependent upon the ownership of F. M. Alexander, who retained the absolute right to part with such ownership in any legal manner whenever he might desire so to do. It follows that, upon the sole question presented by the appeal, the judgment below must be affirmed. Plaintiff makes no claim on the theory that the judgment or decree in the former case was an adjudication binding upon the defendant Katie Alexander, who held the title to the land by an unrecorded deed when the original suit was begun and prosecuted to judgment against her husband as the apparent owner of record in possession, and we are not called upon to consider or decide that question.
For the reasons stated, the judgment appealed from is— Affirmed.