76 Iowa 567 | Iowa | 1889
II. We will first consider the case so far as it applies to the tract of land in which Younger claims an interest under the assignment to him. It will be observed that the assignment of the contract made by the husband to the wife was before the judgments were rendered, and the land was occupied as a homestead at the time the garnishment proceeding was commenced against the wife. It is not shown that the assignment by the husband to the wife was without consideration. The assignment purports to be for a valuable consideration, and there is nothing to overcome the presumption of law arising thereon. It is not shown that at the time of the assignment the husband was insolvent, and that the judgment against him could not have been made from his property. It is true that soon after the assignment an execution was returned nulla bona, and still another or others afterwards. But it cannot be presumed therefrom that the husband was insolvent when the assignment was made. There is no evidence to support the conclusion that the assignment was made to defeat the husband’s creditors. As it is to be presumed to have been made upon a sufficient consideration, and neither fraud of the parties nor insolvency of the husband shown, the land cannot be held subject to plaintiff’s judgment against the husband. When the garnishment proceedings were .instituted against the wife the land was occupied by Hann and his wife as a homestead. It is not, therefore, subj ect to the judgment against her.
We reach the conclusion that plaintiff’s judgment against the wife, Charlotte, ought to be enforced against the lands last acquired by the parties, and which were by the assignment of the contract attempted to be transferred to defendant Sayles. The decree of the district court will be so modified as to dismiss the petition as to Younger, and to grant the relief prayed for as against Sayles and the land claimed by him. The costs will be paid equally by plaintiff and defendant Sayles.
Modified and Affirmed.