139 Iowa 679 | Iowa | 1908
On October 1, 1893, James Sullivan, being the owner of several forty-acre tracts of land, including the southwest quarter of the southeast quarter of section 21, township 81, range 26, in Dallas County, united with his wife. Bridget Sullivan, in a conveyance of
The defendants, except Susan Sullivan, widow of James, Jr., and Mabel Newell and her husband, C. C. Newell, made no appearance or defense to the action. The three persons last named appeared and filed answer, the material averments of which, so far as they require consideration on this appeal, are that James Sullivan, Jr., married the defendant Susan Sullivan in the year 1883, and that said marriage relation continued unbroken until his death, long after the conveyance to him of the said land by James Sullivan and Bridget Sullivan in the year 1893, and that the said Susan never in any manner conveyed or released her right of dower therein. By a cross-petition in her behalf the court was also asked to establish her claim to one-third interest in said property. Replying to the cross-petition, plaintiff alleged the making of the deed of October 31, 1903, as hereinbefore described, alleged the failure of James Sullivan, Jr., to pay the annuity stipulated for in said déed, or the taxes accruing on the land, or the mortgage existing thereon, and the consequent reversion of the title under the deed to James Sullivan, Sr. Plaintiff further alleges that because of such failure James Sullivan, claiming a reversion of the title, demanded surrender of the possession and re-conveyance of the property, and in pursuance thereof James Sullivan, Jr., did make the reconveyance referred to, and thereupon James Sullivan, Sr., took, and thereafter until his death held, exclusive possession. To this reply the defendants demurred generally, and also stating, as specific ground thereof, that the reply avers no facts constituting any forfeiture of the title of James Sullivan, Jr., and fails to show that proper legal steps were taken
2. Demurrerwaiver of II. Appellees insist that the ruling upon the demurrer was waived by the appellant by proceeding to a trial. The record is not quite clear upon the question thus raised, but it would seem that the demurrer to the reply was submitted under an agreement to allow the court to rule thereon in its final decree, and this was done. The demurrer did not reach all the matters presented for the hearing and decision of the court, and we think the right to raise the question of the correctness of the ruling was not waived. The appeal is from both the ruling on the demurrer and from the decree, and appellant is entitled to a hearing thereon.
The Kusch case, above cited, from the Illinois court is quite in point. There the owner of land conveyed it to his son by deed, which recited that it was made “for the consideration of a life maintenance and one dollar.” Thereafter he instituted an action in equity to set aside the deeds, because of the son’s failure to furnish the support. Pending the trial, the action was dismissed as against, the son’s wife, and upon hearing the evidence the court entered decree for plaintiff for the relief prayed. On appeal the point was raised that the wife had an inchoate right of dower in the real estate, and was therefore a necessary party. Of this contention the court says: “The right of dower is not a vested right, but a mere intangible, inchoate, contingent expectancy. Where there is a de-feasible title in the husband, and that title is defeated, the right of dower in the wife also terminates.” In -another case by the same court, Hugunin v. Cochrane, 51 Ill. 302 (2 Am. Rep. 303), the same principle is made applicable to a case quite parallel in its material facts to the case at bar. John C. Hugunin, having purchased land from Leonard C. Hugunin for the stipulated consideration of $2,000, received a conveyance-thereof, and gave in return a mortgage upon the premises to secure the payment of the entire purchase price. Later said grantee reconveyed the land to the grantor in payment and discharge of the mortgage debt, and his notes for the payment of the purchase price were surrendered and canceled. John O. Hugunin was a married man at the date of both transactions, but his wife did not join in the reconveyance of the land. Hpon the death of John O. his widow brought action for the assignment of dower.. Her petition was dismissed by the trial court, and that holding was affirmed on appeal. Tibe court, speaking by Mr. Justice Walker, says: “There is no doubt that the husband of the plain
We have, then, to consider whether the record brings the case at bar within the operation of the principles thus affirmed. ■ Of this we think there is no room to doubt whether we treat it as a case- of re-entry by the grantor upon failure of a condition subsequent, or a simple recon-veyance of the land in satisfaction of James Sullivan’s vendor’s lien. The reply to which the demurrer was upheld avers the entire failure of James -Sullivan, Jr., to pay the mortgage debt assumed, or the annuity, to the grantors, or the taxes accruing on the property, and that by reason thereof the grantor re-entered the property, and thereafter continued in exclusive possession and control. All this the demurrer admits. If we waive the admission by the demurrer, and look alone to the evidence, we are still forced to the conclusion that Susan Sullivan is not entitled to dower. True some of the witnesses were incompetent to testify to some of the matters recited by, them, but there is enough disclosed from competent sources to make it entirely clear that James Sullivan, Jr., soon concluded that his contract was not a profitable one, and abandoned any attempt to comply with the conditions of the deed, and that to free himself from his obligation he reconveyed the title to his father. There is no claim, nor is there any. evidence, indicating that such reconveyance was intended to defraud Susan Sullivan. Dower is favored by the courts, but it is not to be allowed at the expense of clearly inequitable results, unless the statute clearly requires it. Such is not the case here. The claim of dower can be of no higher quality than the seisin of the husband at. the instant when the concurrence of such seisin and the wife’s coverture give it birth. In this instance, when James Sullivan, Jr., abandoned the attempt to perform the stipulations which were made the express consideration of the conveyance, he stood vested with the
The decree of the District Court is reversed, and cause remanded, for entry of a decree in harmony with this opinion. — Reversed.