102 Neb. 489 | Neb. | 1918
Action in equity to have a prenuptial deed, made by plaintiff’s husband, since deceased, adjudged void as in
It appears that at the time of marriage plaintiff and her husband were advanced in years, he the older; that they were then and continued to be residents of the state of Iowa, and that both were possessed of property, the husband owning considerable property besides the 80 acres in controversy; that the marriage was an unhappy one, the wife leaving him some two years after-wards; that, while the wife knew that he' possessed Nebraska land, she knew nothing about the amount or value of it; that no false representations were made by him to her about it, or that as an inducement to marriage she should have an interest in it; that the land was both acquired and disposed of by him after the marriage engagement; that during their engagement he made other dispositions of property without objection from her; that at his death he left other real estate in Nebraska and property elsewhere undisposed of; that the land in controversy was originally owned, subject to a mortgage, by his son Joseph; that he paid off the mortgage, taking a deed to the land; that the deed recited “one dollar and other consideration;” that subsequently he deeded the land back to his two sons, defendants herein, taking from them, on their suggestion, a life lease; that no consideration was paid by them further than what the facts above shown would indicate; that his two sons were his only surviving children by his first wife; that at the time of making the deed to his sons he stated to them that it was understood between himself and his intended wife that the property of each should go to the children of each; that after the deed was made he paid no taxes on the land, nor was any rent paid to him; that the deed to his sons was delivered at the time it was made, but .not recorded until afterwards.
Counsel for defendants (appellees) argues that section 1269, Rev. St. 1913, which provides that neither husband nor wife can “inherit” real estate “if either such husband or wife be not a resident of this state,” and the conveyance is made “by the one seised at the time of such conveyance,” is conclusive against the plaintiff. While there may be room for doubt about it, we are hardly of the opinion that this provision of the law, although it empowers the husband to make a deed which would have deprived the wife, or prospective wife, of claiming any interest in the land as against a purchaser, can be said also to give a right, as between himself and her-, to make a conveyance in fraud of her marital rights. The main purpose of this statute was to protect innocent purchasers. Its existence, - however, does have a direct bearing upon the question of fraudulent intent. The fact that he could have conveyed this land and given a good title to a purchaser, and did not do so, is a circumstance going to show that he was not attempting to deprive his prospective wife of anything that in fairness should go to her.
Butter v. Butter, 21 Kan. 521; Goodman v. Malcolm, 9 Kan. App. 887, 58 Pac. 564; Hamilton v. Smith, 57 Ia. 15; Bell v. Dufur, 142 Ia. 701; Dudley v. Dudley, 76 Wis. 567; Allen v. Allen, 213 Mass. 29; Nelson v. Brown, 164 Ala. 397; and note to Deke v. Huenkemeier, 48 L. R. A. n. s. 512 (260 Ill. 131).
Affirmed.