139 Iowa 511 | Iowa | 1908
The evidence shows with but little substantial dispute the following facts: On March 1, 1894, Samuel Matheson, being then somewhat advanced in age, married the plaintiff herein. On June 25, 1905, the said Matheson died intestate, leaving the plaintiff, his widow, and several children by a former marriage his heirs at law. Prior to the date of his marriage, the deceased owned a quarter section of land in Buena Vista county, upon which there was a mortgage indebtedness of $600 owing to the school fund of said county. Shortly before his marriage to plaintiff, Matheson visited the office of Hon. E. E. Mack, a practicing lawyer at Storm Lake, and executed a deed in due form to his intended wife, Elizabeth Harvey, for the west one-half of said tract of land. This instrument he left in the hands of Mr. Mack, with instructions to keep and give it to the grantee. Later, and after the marriage had taken place, Matheson called upon Mi*. Mack and asked for the deed, but Mack declined to surrender it, and soon thereafter Matheson appeared again, accompanied by his wife, and the paper was thereupon delivered to her. The only evidence as to what became of it is the testimony of plaintiff, who says that, after reaching home on the day the deed was delivered to her, Matheson asked where it was, and she handed it to him, and that he then and there, without her consent and
Nor do we see how the mistaken listing of lands of the widow as belonging to the estate will estop her from asserting her right thereto when the mistake is discovered, in the absence of any showing or suggestion that the heirs have been led by her act to incur any expense or have been placed in any more unfavorable position than they would have occupied had she asserted her right at the outset. Neither can the fact that at the beginning of this proceeding plaintiff claimed but a distributive share in the land be held such an election as to estop her from amending her pleading and enlarging her claim to include the entire estate therein. She came into court asking to have her rights as widow established in all of the lands of'which her husband died seised, and at first included this land with others in her petition. Later, when, as the evidence tends to show, she for the first time discovered that her rights under the deed were not lost by its destruction, 'she amended her petition by limiting her claim for distributive share to those lands not included in said deed, and asked that her title to this particular tract be quieted against the claims of the heirs. It is very clear that these facts do not present a case where a plaintiff upon the same transaction or state of facts may pursue either one of two or more remedies. If, as she claims, the deed to plaintiff had been delivered, and she had not concurred in its destruction, she was not put to a choice between inconsistent
We are satisfied with the correctness of the decree as entered by the trial court; and it is affirmed.