168 Iowa 333 | Iowa | 1915
This appeal is taken from a ruling by the trial court sustaining a demurrer to plaintiff’s petition. The defendant is the widow of Anton Kaspar, deceased, and plaintiff is the daughter of Kaspar by a former marriage. From a time anterior to his marriage with defendant he had been the owner of a homestead in Cedar Rapids the title to which he thereafter conveyed to plaintiff by a deed which is hereinafter set out. Kaspar and his wife continued to occupy and use the premises as their family home until his death since which the widow has continued in possession claiming a right of occupancy therein for life. Plaintiff brings this action in equity stating the foregoing facts, alleging her title under the deed above mentioned, and denying that the widow ever acquired or now has any right or interest in said property or in the occupancy thereof. In support of her claim of title and denial of any right in the defendant, she alleges that at the time of the death of Kaspar and at all times during the existence of the marriage relation between him and the defendant there was an existing and valid antenuptial contract between them by the terms of which the defendant expressly waived all rights of every kind in the property of her husband including the right of homestead. The contract so pleaded is in the following words:
“This agreement made on the 25th day of March, 1898, by and between Anton Kaspar, party of the first part and Barbara Kaspar, formerly Toman, party of second part, as husband and wife, stipulated as follows, to wit: That they agreed to keep his or her own property the same-as it was at
“This contract is in fulfillment of a certain antenuptial contract made on the 9th day of February, 1898, by and between the same parties one day prior to their marriage. ’ ’
The petition further alleges the conveyance of the property to plaintiff by the deed to which reference has already been made and states the same to have been in words as follows:
“In consideration of Three Hundred Dollars, I, Anton Kaspar, being the same person as the one Anton Kaspar named in a certain antenuptial contract recorded in Records of Linn Co. — in Yol. 222 — page 493 of Linn County, State of Iowa, hereby sell and convey unto Anna Plistil (my daughter) of the County of Linn and State of Iowa, the following described premises in the County of Linn, State of Iowa, to wit: Lot Nine (9) in Block Twenty-one (21) of 0. N. Hull’s Re-survey of Blocks Fifteen (15) and Sixteen (16) of L. S. May’s Addition to West Cedar Rapids according to the recorded plat.
“The grantor and his wife hereby reserve the right to live in, occupy and use said premises, also to take all the profits therefrom during the natural life of each of them. The intent being and is that grantor and his wife are to have a life estate reserved in said premises, and to have free access and control of said premises during the life of each of them.
“And I do hereby covenant for myself my heirs and
“And I, Barbara Kaspar wife of the said Anton Kaspar for the foregoing consideration, do hereby relinquish all my rights, including the rights of dower and homestead in the above described premises, except as to the life estate as above stated.
“Signed this 10 day of Nov. A. D., 1900.”
(Signed and duly acknowledged by both Anton Kaspar and his wife Barbara.)
It is further alleged that plaintiff “was informed and believed” that said deed conveyed to her the title to said property subject only to a life estate in her father but she now finds that he retained in himself an estate for the life of his wife which has never been conveyed away and that such apparent estate creates a cloud upon her title which she asks to have removed. Some other matters are pleaded but do not affect materially the issue of law raised by the demurrer.
Upon the allegations of her petition plaintiff asks a decree establishing and confirming her title in fee simple and that defendant be found and decreed to have no title to or right of occupancy in the property, and for general relief.
The demurrer to the petition is general in form to the effect that the allegations of the petition do not entitle plaintiff to the relief demanded, also that the petition states facts which show affirmatively that defendant is entitled to the use and occupancy of the property for life. The demurrer having been sustained the plaintiff appeals.
It appears that the pleading is wholly lacking in this respect. There is not a statement or suggestion that Kaspar or defendant or either of them made any statement or representation of any kind to induce plaintiff to accept the conveyance in the form in which it was executed, or that they misrepresented or misstated its legal effect, or that the deed does not in every respect conform to the oral agreement, if any there was, in consummation of which that instrument was made and delivered. Plaintiff does allege that she “was informed and believed” that the deed vested her with title subject only to a life estate in her father, but she does not allege that she was so informed by him or by the defendant or by any other person authorized to speak for them or either of them. So far as appears she may have been so informed by her own counsel or by the merest stranger to the transaction. Indeed while she says she was “informed and believed,” she does not state when such information came to her and her allegation may be literally true although she received it long after the deed was made and delivered. Fraud is not to be presumed in such case and in the absence of proper allegation evidence of fraud will not be admitted.
II. What effect upon this controversy is to be given to the antenuptial contract?
As to the effect in general of a reservation in a deed of conveyance it is unnecessary for us to go into any review of the authorities. It is sufficient to suggest that while the distinction between a reservation and an exception is sometimes important it often happens that what is called a reservation is treated and given effect by the courts as an exception. It is the intention of the parties which is to be ascertained and in our opinion the intention here is very manifest to except the defendant’s right of occupancy or life estate in the homestead from the effect of the conveyance to plaintiff.
It follows from what we have said the trial court did not err in sustaining the demurrer to the petition and the ruling is — Affinned.