123 Iowa 81 | Iowa | 1904
Samuel F. Hays was at one time the owner of the property in dispute. In March of the year 1868, for the consideration of $1,000, he conveyed the same by warranty deed to his wife, Elizabeth Hays. Elizabeth was the sister of defendant, Marsh. She died in the spring of 1895, without issue, her husband, the plaintiff herein, surviving. He claims that he is entitled to the real estate of which she died seised because of a decree in a partition suit awarding the land to him, that he is entitled to it by adverse possession, and that the decree awarding the same to defendant should not have been rendered because of defendant’s laches. He further claims that in any event he should be awarded a one-sixth interest in the land as an heir of his wife. Another claim made by him is that his wife held the title to the land in trust for him, and that he is entitled to the whole thereof as the beneficial owner. Defendant bases his title on the fact that his sister, plaintiff’s wife, owned the land at the time of her death; that plaintiff, the husband, elected to take a homestead in the land in lieu of distributive share; and that he is entitled to have the fee-simple title decreed to be in
But appellee says this point was not presented to the lower court. We think it must have been, for it was incumbent on the court to fix the interest and title of each of the parties to this controversy. At any rate, defendant should not be awarded more on his counterclaim than he shows himself entitled to. Under the pleadings and the evidence lie was entitled» to five-sixths of the property in fee simple, subject to plaintiff’s life estate. The trial court gave him the whole. -The amount to be allowed him was necessarily involved, and the trial court committed an error in giving him the entire fee-simple title.
The case will be remanded for a decree awarding plaintiff a life estate in the property and a fee-simple title to an undivided one-sixth interest therein; and to the defendant a fee-simple title to an undivided five-sixths interest therein, subject to plaintiff’s life estate in the homestead. The defendant will pay one-sixth and the plaintiff five-sixths of the costs.- — Reversed and remanded.