84 Iowa 367 | Iowa | 1892
Tbe plaintiff and tbe defendant were formerly husband and wife. It appears from tbe record that on tbe seventeenth day of September, 1889, tbe plaintiff filed a petition in tbe court below, in which be sought to obtain a decree setting aside and annulling a decree of divorce between tbe parties, wbicb was before that entered in tbe district court of Linn county, at tbe suit of tbe defendant. Tbe claim made in the petition to set aside tbe decree was that it was procured by fraud. On the twenty-fifth day of December, 1889, tbe plaintiff withdrew bis petition, and “dismissed all claims and actions therein prayed for,” and asked to be beard on a substituted petition, which be then filed. Tbe record does not show that there was any appearance to the original petition by tbe defendant, and it is conceded that tbe district court of Washington county bad no jurisdiction to enter a decree canceling and setting aside tbe decree of divorce entered by tbe district .court of Linn county. Afterwards tbe defendant filed a motion to strike tbe substituted petition from the
It is now strenuously contended in behalf of the defendant that the court erred in overruling the motion
II. We come now to the questions raised by the
*370 “Know all that I, Rebecca Nieukirk, of the county of Linn, state of Iowa, do acknowledge myself indebted to Isaiah Nieukirk in the sum of two hundred dollars, and for the purpose of securing the payment of the same I hereby convey to said Isaiah Nieukirk lots 5 and 6, and south half of lots 7 and 8, in block 12 in the town of Brighton, Washington county, Iowa; the intent of this conveyance and security being that on sale of said real estate at any time by said Rebecca Nieukirk she shall pay over of the selling price of said property to said Isaiah Nieukirk the sum of two hundred dollars. And specially is it understood that this shall fix the interest of said Isaiah Nieukirk in said property, any order, decree or judgment of the district court hereinafter entered to the contrary notwithstanding. But in the event no decree of divorce shall be granted by the district court of Linn county, Iowa, then this contract, conveyance and lien shall be of no force or effect. Done this April 3, 1889.
“Mrs. Rebecca Nieukirk.
“Witness: FrankE. Pollens.”
This instrument was acknowledged and recorded on the seventh day of May, 1889. The divorce was granted on the fifteenth day of April, 1889. It is evident from the instrument itself that it was in the nature of a settlement of the property interests of the parties in case a divorce should be granted. So far as appears from the face of the petition and from the instrument itself, the instrument was not void as against public policy, as claimed by counsel for the appellant. The title to the lots described was in the plaintiff when the suit for a divorce was commenced, and it was perfectly competent for the parties to agree that, if the defendant should be successful in her divorce case, the property should be decreed to her, and there could be no valid objection if the parties so agreed that the plaintiff herein should have a lien thereon for two hundred dollars. The whole transaction, as shown by the written
III. There is but one further question which we deem it proper to consider. It will be observed that
Tbe decree of tbe district court is aenirmed.