188 Iowa 986 | Iowa | 1919
Plaintiff further alleges that, soon after the institution of said proceedings, civil and criminal, the defendant, father of Eugene Hiscox, came to her and offered that, if she would marry EPgene, and1 dismiss the proceedings against him, civil and criminal, he, defendant, would convey to the plaintiff a certain designated 40 acres of land in Cherokee County; that plaintiff accepted said offer, and did then and there dismiss her action for damages, and, by marrying the accused, caused the criminal proceedings against him to be abated; but the defendant neglected and refused, and still neglects and refuses, to perform, his agreement to convey to her the land.
Plaintiff further alleges that the contract pleaded by her was made in Cherokee County, Iowa, where all the parties then resided; but that, after the performance of said agreement on her part, and within less than five years thereafter, the defendant removed from this state to the state of Mississippi, where he has since continuously resided; that, at the d'ate of said agreement and its perform-
The defendant answers the petition, denying its allegations, pleading the statute of limitations, and alleging that the contract pleaded by plaintiff is “immoral, void, and in contravention of the statute of frauds.”
The testimony offered tends fairly to sustain the allegations of the petition that, when the said Eugene Hiscox had been made defendant in both civil and criminal proceedings, charged with plaintiff’s seduction, appellee visited plaintiff, and proposed that she dismiss her suit for damages, and, by marrying his said son, put an end to the criminal prosecution against him; and that, if she would do so, he, defendant, would convey /to her by deed a certain 40 acres of land then owned by him. He further explained to plaintiff that, unless she married Eugene, the young man was liable to be sent to prison, and agreed that, if she would accept his offer, and release his said son from both civil and criminal liability, he would execute the deed of the land to her, as proposed, and send it to her with the marriage license. It is alleged that plaintiff finally accepted the proposition, the marriage was solemnized, the civil suit dismissed; and the criminal proceeding abated, but that defendant did not send the deed, as promised; that, shortly after the marriage, defendant again visited plaintiff at her home, and asked her to go out to the farm and live with Eugene, saying that he would make the deed and send it by Eugene when he (Eugene) came for her, and would put buildings on the 40, so that she and her husband could move upon it in the spring; that, without performing his promise in any respect, defendant left the state, since which time he has been and remained a nonresident of Iowa; that,
When plaintiff had rested her . case in chief, the defendant moved the court to strike all the testimony offered in support of her claim, and to direct a verdict in defendant’s favor, on the grounds:
1'. That the contract alleged and sought to be proved is within the statute of frauds, and, not being in writing, no proof thereof is admissible.
2. That the alleged cause of action is barred by the statute of limitations.
3. That proof of the value of the land does not afford the correct measure of plaintiff’s damage, if any, and that there has been unreasonable delay in bringing her action.
The motion was sustained by the court, a directed verdict for defendant was returned, and judgment entered thereon.
I. The record does not clearly indicate whether the trial court sustained the motion to strike, and for a directed verdict generally, upon all the grounds assigned therefor, but we infer from the abstract that, the order was based on the objection that the contract pleaded by the plaintiff is within the statute of frauds. It is quite evident, we think, that there is no merit in the objection that plaintiff did not sufficiently avoid the plea of the statute of limitations, or in
The provision of the statute referred to is that:
“Except when otherwise specially provided, no evidence * * * is competent, unless it be in writing and signed by the party to be charged,” of certain specified contracts, among which are: “(2) Those made in consideration of marriage: (8) those wherein one person promises to answer for the debt, default or miscarriage of another * * *; (4) those for the creation or transfer of any interest in lands, except leases for a term not exceeding one year.” Code Section 4625.
By the next section, Code Section 4626, it is provided that the provisions of the fourth subdivision of Section 4625, above quoted, relating to lands, shall not apply when any part of the purchase price hds been paid,- “or when there is any other circumstance which, by the law heretofore in force, would have taken the case out of the statute of frauds.”
Quite applicable in principle, though diverse in its facts, is the precedent found in Larsen v. Johnson, 78 Wis. 300. In that case, Susan Larsen, a widow, having a small amount of property, entered into an oral contract with Andrew Johnson, by which the latter undertook to provide for her support, pay her debts, and take care of, manage, and improve her land, so as to make it productive for such purpose; and to that end it was agreed that they should
“The marriage of the parties was not the consideration of the contract to convey the land or any part of it. It was only incidental, as the condition or relation in which the respondent should render to the said Susan Larsen, and she receive, her support and comfort, as the consideration of the conveyance. The agreement to marry may have been made at the same time, but not as any part of the consideration for the conveyance. It was for the benefit of the respondent, as much as, if not more than, it was for her benefit. There was sufficient lawful and valuable consideration to support tile contract, aside from any supposable consideration of marriage.”
Now, plaintiff had the right to settle or dismiss her suit for damages, and to consent to the dismissal of the criminal prosecution. The defendant had the right to purchase immunity for his son, in the civil case, on the best terms he could obtain, and he could lawfully bind himself to make provision for the support of plaintiff or her child, in consideration of the release by her of his son from criminal liability for her seduction. Armstrong v. Lester, 43 Iowa 159; Wright v. Wright, 114 Iowa 748. To be sure, the only way plaintiff could effectually dismiss the criminal proceeding was by marriage with her alleged seducer; but here again is demonstrated the fact that the marriage was only an incident to the thing contracted for, the, release of the
“The cases most frequently referred to are those arising out of agreements for marriage settlements. In such cases, the marriage, although not regarded as a part performance of the agreement for a marriage settlement, is such an irretrievable change of situation that, if procured by artifice, upon the faith that the settlement had been, or the assurance that it would be, executed, the other party is held to make good the agreement, and not permitted to defeat it by pleading the statute.” Glass v. Hulbert, 102 Mass. 24, 39.
See, also, Peek v. Peek, 77 Cal. 106; Green v. Green, 34 Kan. 740; 4 Pomeroy’s Eq. (3d Ed.), Section 1409.
It follows that the trial court erred in striking the evidence and directing a verdict for the defendant. A new trial is, therefore, awarded.
The judgment below is — Reversed.