Stewart v. Brand, 23 Iowa 477

Stewart v. Brand

23 Iowa 477 | Iowa | 1867

Dillon, J.

1. conveyanoe: defective description: husband and wife. Question 1. Is the plaintiff entitled to have the deed, made by Samuel Brand (the defendant) to his wife, in 1857, corrected ? This deed is , , detective only in not stating the name of the . , . . town m which the lot is situate. Defendant offered evidence showing that he was importuned to make this deed, that he consented to make it, that it was without actual consideration, and that he purposely left out the name of the town, and then delivered it to the wife who supposed it was correct. No fraud, and in a legal sense, no undue influence is shown. And upon the first question, we hold that the facts above referred to are no answer to the plaintiff’s right to have the deed corrected. In equity the title was in the wife by virtue of this deed.

2. home-husband and wife, devise. Question 2. Did the mother’s will pass title to her son, the said J. C. Brand ? We may remark, that the alleged fraud respecting the probate of this will is not established. At the time of the mother’s ^ pr0perty -^g the homestead of herself and the defendant (her husband). By law, she was capable of devising it, “ subject to the rights of her surviving husband.” Rev. § 2298; Meyer v. Meyer, at present term. This devise gave the property, or the right to it, to the son, subject to the rights of the surviving husband of the devisor.

He had, though a widower and though without children who remained with him, a homestead right in the property while continuing to occupy the house. Rev. § 2278.

*4828_al3an, donment. *481Question 3. Had this homestead been abandoned by him when the mortgages in question were made ? The *482legal principles applicable to this inquiry, are stated in former opinions of this court and need not be repeated. Tyffe v. Beers, 18 Iowa, 4, and authorities there cited.

Upon the evidence, as a question of fact, we are of opinion that the above inquiry must be answered “ No.” When the first mortgage was made, the said Samuel was actually living in the house, and the son was not. It is true, the- father was living with a tenant to whom he had rented the house, but such a temporary lease would not amount to an abandonment of the homestead right.

4. — mortgagee without notice. The question is somewhat more difficult as to the second mortgage, for, at the time it was made, J. G. Brand was in the actual possession of the house, but not .it _ _ . n t-tii with the consent ot the father, who had been litigating and was disputing his right thereto. That the father did not intend to abandon his right is quite clear. That the son could claim that the father had abandoned his right, could not, under the evidence, reasonably be maintained. The question of doubt is, whether the plaintiff can insist that the father (he not being in actual possession, and the son having the apparent title) had abandoned his right.

6. — mortgatice."1 no The plaintiff had lived for years in the immediate vicinity as a near neighbor of the defendant, and had, we think, knowledge of facts sufficient to put him upon notice of the father’s rights. Without going into an extended discussion of the evidence, we conclude by stating-that upon- all of the circumstances, we are of opinion that the father’s homestead right had not been abandoned when the plaintiff received his mortgages.

6_mort. gage lien. Question 4. Did these mortgages give the plaintiff a lien for the debts therein mentioned ? Yes— subject to the rights of the father as the sur*483viving husband of the said Margaret. This conclusion is a necessary result of those which precede it.

Question 5. Is the plaintiff entitled to a decree of foreclosure? Tes — subject to the rights of the said Samuel as the surviving husband. These rights are those of dower and of homestead; the nature and extent of which have been very carefully considered in the ease of Meyer v. Meyer decided at the present term.

The' decree of the District Court ordering the deed from Samuel to Margaret 'Brand to be corrected, is affii’med.

The decree of that court dismissing the petition is reversed, and a decree of foreclosure ordered, which decree shall be subject to the right of dower and of homestead in favor of the said Samuel. This cause is remanded to the court below with directions to enter a decree in accordance with this decree, specifically reserving the dower and homestead rights of the defendant, and equitably adjusting the costs in that court. The costs in this court to be paid by the defendant.

Reversed.