185 Iowa 1205 | Iowa | 1919
I. On the 29th day of January, 1913', a decree was entered in the district court of Crawford County, divorcing plaintiff and cross-petitioner, and awarding the former alimony in accordance with a stipulation and agree
“It is further adjudged and decreed that the defendant make and deliver to J. P. Conner, as trustee for the plaintiff, a deed conveying the 240 acres of land above described, said deed to be made at once, and to be a general warranty deed; and an abstx*act of title is to be fux*nished, showing clear and unincumbered title in the defendant, the same to be furnished forthwith.
“It is further decreed that said land is to be conveyed to the said J. P. Conner, as trustee, for the use and benefit of the plaintiff, and he is to hold the same in his name as trustee for a period of five years. The income from the land during the full five years after March 1, 1913, is to be paid over to the plaintiff for her own exclusive use. * * *
“It is further decreed that, after the expiration of five year's after the date of the decree of divorce to be rendered herein, the said trustee, upon demand, shall convey the above-described real estate to the plaintiff, conveying all the title and interest held by such trustee.
“It is further ordered and decreed that if, before the expiration of the five-year limit, an opportunity shall arise for selling the property to advantage, and at not less than
All of the provisions of the decree required to be performed by him were carried out by the defendant and cross-petitioner herein.
On January 20, 1918, defendant filed a cross-petition in the divorce suit, alleging that the purpose of the' trusteeship created by the stipulation of the parties and the original decree of the court was to restrict the expenditures of plaintiff to the income arising from the 240 acres of land, and to protect her against her own extravagance, or the designs of persons who might desire to take advantage of her inexperience in business affairs; that she has since sold the residence in Denison, and received about $6,000 in rentals from the farm, and $4,000 from the trustee for the 40-acre tract conveyed by her to him; that plaintiff has dissipated all of the money thus received, in useless and extravagant expenditures. The cross-petition prays that plaintiff’s deed conveying the 40-acre tract to' the trustee be canceled and set aside, and that the trustee be required to account for the rents derived from said land and all funds coming into his hands by virtue of the trust; that the divorce decree be modified so as to provide tb at plaintiff have only a life tenancy in the 240-acre tract; and that the title thereto be vested in her heirs at law, with a provision in the decree that the court retain jurisdiction to make future orders, if necessary, for the proper support and maintenance of plaintiff; and that the trustee be restrained, until the further order of the court, from conveying the land to plaintiff, or otherwise alienating or incumbering the same, until the final disposition of the cause on the merits.
A temporary writ was ordered, and issued as prayed, restraining the trustee from conveying or incumbering the property. On February 4th, counsel for plaintiff filed a mo
Appellant bases his right to a modification of the decree upon the grounds: (a) That he is the donor thereof, and entitled to have the trust carried out in .accordance with its terms and the real purpose for which it was created; and (b) that, if the averments of the petition do not entitle him to the specific relief prayed, they do state good grounds for the appointment of a guardian of the property of plaintiff, and that, in either event, the temporary writ should, not have been dissolved. !
The order complained of was entered more than five years after the date of the original decree, and long after the legal duty of appellant to'contribute to the support or maintenance of plaintiff had terminated. All of his interest in the property passed by the deed to the trustee, for the use and benefit of plaintiff, and the decree quiets title in her against him. Section 4091 of the Code' provides that the district court may modify a decree for one or more of the following reasons:
“1. For mistake, neglect or omission of the clerk, or irregularity in obtaining the same ;i
“2. For fraud practiced in obtaining the same;
“3. For erroneous proceedings against a minor or person of unsound mind, when such errors or condition of mind do not appear in the record;
“4. For the death of one of the parties before the rendition of the judgment or making of the order, if no substitute has been made of the proper representative before the rendition of the judgment or order;
“6. For error in the judgment or order shown by a minor within twelve months after arriving at majority.”
It is urged, however, in this connection that, if the petition was docketed on the wrong side, plaintiff’s remedy is by motion to transfer; but the petitioxx neither suggests nor asks the appoixxtment of a guardian, and the filing of such a motion would be quite uxxlikely. If cross-petitioner desires the appointment of a guardian to take charge of plaintiff’s property, he should proceed in the regular way for that purpose. Of course, plaintiff may, under the prayer for general equitable relief, have any relief in equity to which the allegations of his petition entitle him; but the court will not revei'se an order dissolving a temporary writ, simply because the allegations of a cross-petition praying the modification of a decree in a divorce case respecting aliixiony happen to contain the necessary averments for the appointment of a