64 Iowa 155 | Iowa | 1884
Lead Opinion
It appears from the averments of the petition that the plaintiff and the defendant, Elias Beck, were married in 1870, and that they are still living together as husband and wife. At the time of the marriage, Elias Beck was the owner of a farm and a considerable amount of personal property. The defendant, Charles Beck, is the son of Elias Beck by a former marriage. Some five or six years ago the said farm and personal property were sold, the plaintiff joining in a deed of the real estate.
Afterwards Elias Beck invested a large portion of the proceeds of said farm and personal property in other real estate, and caused the same to be conveyed to his said son Charles. After the purchase of the last named real estate, the plaintiff and her husband Elias took possession thereof, and have since continued to occupy the same as their home.
It is charged in the petition that the purpose and intent of Elias Beck in selling his said farm, and in procuring the plaintiff to join him in the conveyance thereof, and in investing the proceeds in the juemises which he subsequently purchased, and in taking the title thereof to his son instead of himself, was to place the property beyond the reach of the plaintiff, and fraudulently deprive her of her right of homestead and dower therein.
The prayer of the petition is that the plaintiff’s dower and
In the case of Buzick v. Buzick, 44 Iowa, 259, the husband of the plaintiff, by a fraudulent connivance, permitted his son by a former marriage to obtain possession of his realty by obtaining a sheriff’s deed thereto. It was held that the proceeds of the sheriff’s sale in excess of the amount of the judgment' under which the property was sold should be subjected to the wife’s claim of dower. In Petty v. Petty, 4 B. Monroe, 215, the husband, a few days before his marriage, conveyed all of his real estate to his children by a former marriage. The conveyance was set aside upon the ground that it was a fraud upon the wife’s right of dower.
In the case at bar, the wife voluntarily united in the conveyance of the farm, which was the property of the husband at the time of the marriage. It is true, she alleges that her husband procured her to join in the conveyance, and purchased the other real estate, and caused the title thereof to be taken in the name of his son, with the fraudulent intent of depriving her of the right of homestead and dower. Now, while she alleges that these acts were done with a fraudulent intent upon the part of her husband, she does not aver that she was induced to release her dower by any fraudulent representations, nor even by any false promises. If she was not imposed upon and deceived by fraudulent acts or representations, and was not thereby induced to join in the conveyance, her act in making a release of her dower must be regarded as voluntary. The case differs in this respect from Buzick v. Buzick. In that case the wife made no release of her dower.
Suppose that the husband in this case had divided the pro
We think the demurrer to the petition was correctly sustained.
Affirmed.
Dissenting Opinion
Adams, J.
dissenting. It is undoubtedly true that the plaintiff’s husband might have made a valid gift of the proceeds of the former farm, and the plaintiff would be remediless. But this is not what he did. He purchased another farm with the proceeds, and thereby became the owner, and the plaintiff became dowable in the same; but to defraud her he caused the title to be taken in the name of a son by a former marriage. According to the allegations of the petition, the husband is still the equitable owner. Fie might, of course, for any good reason, make his son trustee of the legal title, but he should not do it to defraud his wife. Having done it, I think that a court of equity should relieve her and furnish her protection. I think that the case falls within the principle of Buzick v. Buzick.