Gilman v. Sheets

78 Iowa 499 | Iowa | 1889

Robinson, J.

The mortgage involved in this action was executed by Susan Parriott on the northeast quarter of section 22, township 91, range 21, in Franklin county, to secure the payment of two notes, amounting to fifteen hundred dollars, exclusive of interest. The mortgagor was made a party defendant, and a decree was rendered against her and in favor of plaintiff on the twenty-sixth day of May, 1887. Sarah K. Sheets claims a dower interest in a part of the mortgaged premises as the widow of John W. Sheets, deceased. The cause was tried as to her claim, and a decree rendered in her favor on the seventh day of September, 1888, and from that decree the appeal is taken.

i. abbeeviations : use of tncommission to take depositions. I. A motion, filed by appellant, to suppress certain depositions taken on behalf of appellee, was overruled, The depositions were taken pursuant to a . . , ,, x commission addressed: “To any notary ... J J public within and for Dauphin Co., Pa.” It is insisted by appellant that the designation offc the notary is insufficient, for the reason that the names of the county and state in which he is authorized to act are not stated. Bat it is a matter of common knowledge that “Co.” is used asan abbreviation of “county” and “Pa.” as an abbreviation of “Pennsylvania,” and proof of such facts was not required. See 1 Amer. & Eng. Cyclop. Law, 15, Tit. “ Abbreviations.” The abbreviations were so used in the commission that they could have had no other meanings than those named ; hence there was no ambiguity, and no sufficient ground for the objection of appellant. No other question raised by the motion to suppress the deposition having been discussed by counsel, no other will be considered by us.

2. husband and of marriage.0 II. Appellee claims that she was married to John W. Sheets in Dauphin county, Pennsylvania, on the twelfth day of March, 1857 ; that they lived together as husband and wife for two years, when he deserted her; and that they had two children, one of which was born about a year before their marriage. Sheets never lived with appellee after his alleged desertion, although he visited her once about six years after that timq, and visited relatives in the county in which she resided several times after he left her. In March, 1868, he married Miss Maggie Moses in Illinois, and lived with her several years. They were reputed to be husband and wife, and had two children. That marriage was contracted on the part of Miss Moses in good faith, and with the belief that it was valid. In 1874 she obtained a divorce from Sheets on the ground of inhuman treatment. In October, 1882, he married Harriet Kibbe in Franklin county, and lived with her until his death, in October, 1883. On the eighteenth day of August, 1869, Sheets acquired title to the west half of the quarter section upon which plaintiff’s mortgage was given, and, on the thirteenth day of the next December, he conveyed it to a grantor in the chain of title through which plaintiff claims. It is not claimed that appellee joined in that conveyance, nor in any other which had the effect to relinquish her interest in the mortgaged premises. It is contended, however, that her alleged marriage is not established by the evidence. If so much of her evidence as is incompetent under the statute be disregarded, the evidence remaining is sufficient to show that she was married as claimed. Two of her neighbors, who had personal knowledge of the facts, testify to her marriage, and to her living with Sheets, and having children by him, and the certificate of marriage was also introduced in evidence. This testimony is not contradicted.

_ ' sumption of divorce. III. It is claimed that, even if the marriage was contracted as alleged, yet, under the facts of the case, a divorce will be presumed under the rule announced in Blanchard v. Lambert, 43 _ _ _. 1 Iowa, 229. We do not think this case is within that rule. In that case each party to the first marriage claimed to have contracted a subsequent marriage, and it was held that it would be presumed that the relations created by the first marriage had been dissolved by divorce. It was said in Ellis v. Ellis, 58 Iowa, 720, — a case similar to this, — that “there must be something based on the acts and conduct of both parties inconsistent with the continuance of the marriage relation, before the presumption should be indulged” that a divorce had been granted. Nothing of that kind on the part of the appellee is shown in this case.

4 heal estate- ’ identity of' presumption61 TV. It is said that the evidence fails to show that John W. Sheets was ever the owner of any portion of mortgaged premises. It is shown that a person of that name acquired title to the wes^ mbrtgaged quarter section, and that the husband of appellee conveyed the same land to another by warranty deed. In the absence of any attempt to show that there were two persons bearing the same name, we think the showing of identity is prima-facie sufficient. Hatcher v. Rocheleau, 18 N. Y. 87; Gitt v. Watson, 18 Mo. 276; Abb. Tr. Ev. 56. The presumption of identity is strengthened by the fact that the husband of appellee resided in Franklin county, where the land was situated, when he conveyed it.

5. doweb: demortgage1 ' foí’mocoiermal error. Y. Appellee alleges in her answer that she is entitled to dower in the east half of the mortgaged premises, and the decree of the district court recognizes that to be the case; bnt the proof shows that her late husband only owned the west half. Appellant insists that this is a fatal variance; but we think the variancé was little more than a clerical error. The petition alleges that appellee claims an interest in the mortgaged premises. The answer avers that the interest so claimed is a dower interest. The chief controversy in the court below was in regard to the existence of the marriage relation between herself and John W. Sheets at the time of his death, and her right of dower in the mortgaged land; not her interest in one-half of it rather than in the other. The evidence shows that her right attached to the west half. It is agreed by the parties to this appeal that the value of the land in controversy during the year 1884 was fifteen dollars per acre. The decree against Susan Parriott provides for the sale of all the mortgaged premises, and orders “that as to the sum of four hundred dollars of the above judgment against the defendant Susan Parriott, which it is agreed by Sarah K. Sheets, defendant, is the maximum amount of her interest, execution is stayed without bond until the further order of the court in the premises, and subject to the orders of this court.” No one complains of that decree. It had the effect to hold four hundred dollars of the proceeds of the sale of .the mortgaged premises subject to the further orders of the court. The appellee, in the prayer of her answer, which is in the nature of a cross-petition, asks that her dower interest be decreed paramount to the lien of plaintiff’s mortgage, and that an order be made to turn over to her the value of her dower interest, to-wit, the sum of four hundred dollars. That the sum named was the value of her interest is shown by the stipulation as to value. The decree from which this appeal is taken fixed the value of appellee’s right at that sum, and ordered its payment to the clerk of the court for the use of appellee, together with costs. The decree further provides that appellee should have judgment against appellant for said sum, with costs. We discover nothing in the record to justify a judgment against appellant for the value of the dower interest of appellee. She is entitled to have her claim enforced against the proceeds of the sale of the west half of the mortgaged premises, and is entitled to judgment against appellant for costs. The decree of the district court is

Modified and affirmed.