32 Iowa 296 | Iowa | 1871
In June, 1862, plaintiff, who was then tbe wife of defendant Pratt, by a proper decree was' divorced from ber husband, and tbe judgment before rendered against Brainard was awarded to ber as alimony. Tbe object of this action is to subject tbe lands conveyed by Pratt to Clarissa to this judgment. Tbe relief is claimed on tbe grounds that tbe conveyance was made to her;without consideration, and that plaintiff, as tbe assignee by virtue of tbe decree awarding tbe judgment to- ber, has a vendor’s lien upon tbe land for tbe purchase-money thereof, wbicb is sought to be enforced in this action. Other facts involving tbe effect of a garnishment process against Brainard, based upon bis indebtedness upon tbe judgment, tbe liens of the attorneys who procured tbe judgment, and other matters,
Plaintiff bases her right to the relief sought in this action upon the theory that the land in question was paid for by S. A. Brainard, and the conveyance to his wife was without consideration; whereby she holds the land in trust for him, the transaction being a colorable one to protect his property. This is the true theory of plaintiff’s case, though it is not presented precisely in this form. It is not claimed and cannot be, if the land was conveyed to Clarissa in good faith, she paying, or causing to be paid out of her own property, the price thereof, that it can be made subject to plaintiff’s judgment; while, on the other hand, we may admit that if her husband actually paid for the land, or paid a part of the price, the balance being paid out of the separate property of the wife, it may be charged upon the judgment, at least, to the extent of the amount paid by the husband, or, according to the view taken by the district court, may be sold upon the judgment, the wife to be first re-imbursed for the amount she paid upon the land.
Assuming that there can be no question, that, if the land was conveyed to her in good faith and the consideration therefor was paid by her, it cannot be sold upon the judgment against her husband, we will proceed briefly to an examination of the case.
The defendant Clarissa holds the legal title to the lands in question by a deed fair and absolute on its face. She is an absolute owner of the real estate therein conveyed, so far as appears by that instrument. The plaintiff attacks this title and seeks in this case to establish a trust. The burden of proof is upon her and she must, if successful, establish her claim by legal proof. In such a case the law demands clear and satisfactory evidence. Gardner et ux. v. Weston et al., 18 Iowa, 533; Parker v. Pierce,
The evidence shows that.the answer was drawn by the attorney of the defendants, without instruction from them to insert therein the allegation in question. No statement was made by them to the attorney, authorizing the allegation to be made, or upon which it could have been based. It was discovered by them before the action was dismissed, and they instructed their attorney to correct the mistake by an amended answer. It was not, however, done, as the petition was soon after withdrawn by the plaintiff. The matter stated in the allegation is denied by defendants in
There are certain alleged contradictions and • discrepancies in the evidence of defendants which are relied upon by plaintiff. They are of but little importance, and do not serve to establish the main fact upon which plaintiff relies to recover. We will give them no further notice.
Plaintiff insists that the evidence upon this point shows that if such an arrangement was made it was after the land was deeded to the wife. It is very clear that such an arrangement was made, and we are satisfied, from the evidence, that it was entered into at or before the transaction, and well understood by Pratt as well as the husband and wife.
These conclusions render it unnecessary to consider other questions presented in the case. Plaintiff’s petition must be dismissed, and it is so ordered.
Eeversed.