16 Iowa 496 | Iowa | 1864
We are of the opinion, that in all material particulars, the foregoing report is a sound and correct expoition of the facts and law of this case; and that the decision thereon by the Court below ought not to be disturbed.
It is so full, explicit, and satisfactory in its facts and legal conclusions, that it would seem to be a waste of time to attempt a detailed demonstration of its general accuracy;
The exclusion by the referee of a portion of the evidence of John L. Davies respecting certain statements made to him by David Hardy, the father of the plaintiff, and which occupied so considerable a share of the discussions at bar, need claim no attention at our hands, as the decision below was, and must be here, irrespective of said testimony, in favor of the party complaining of such exclusion.
Secondly. The argument of the defense, that the plaintiff is estopped from setting up the claims which she is prosecuting in this suit, by the decree rendered in the consolidated suits mentioned in the report, and also, by her former action for divorce and alimony, was properly overruled, in that the first named decree aforesaid not only does not in terms conclude her rights in any manner, or determine what should be done with the fund in controversy, when paid into court, as ordered; but on the other hand, the decree itself expressly grants her leave, within a certain fixed time, to file her petition, setting up any claim she might have to any part of said fund.
It is true that it is specified she is to do this, “ as the wife of Alexander Wright,” but this qualification is believed to have been accidental; at all events, without more, it could hardly have the effect to prevent a suit in her own right.
Again, as it respects the divorce action, it may be conceded that, so far as the plaintiff’s claim to the fund is founded upon her right to a divorce and alimony, on account of desertion and a failure to maintain her, that the same is barred, but that she is not estopped from claiming it upon other grounds, and especially the one upon which it is awarded to her in this proceeding.
We waive all commenting upon the plaintiff’s claim to the fund in question, as founded upon or derived from her homestead rights, inasmuch as we are quite satisfied from
Prior to their removal to Cedar Falls, namely, in June, 1856, Alexander Wright, husband of plaintiff, borrowed of H. J. J. Jentsen the sum of $1,500, secured by a mortgage jointly executed by Alexander and Isabella Wright, on their homestead. The object of effecting this loan was to enable Alexander to start in business at Cedar Falls. About the time of their removal, to wit, in July, 1856, they also joined in executing a power of attorney to Thomas Yarwood, authorizing him to sell and convey their home property, in Davenport, for such price, and on the terms he might think proper, and to release said Isabella Wright’s dower interest therein.
In connection with, and at the time of the execution of this power of attorney, the referee found, from the evidence, that there was a contract made and entered into between Alexander and Isabella Wright, to the effect that, in consideration the said Isabella would unite in the execution of said power of attorney, and consent to a sale of their home property, that the excess or surplus in the sale thereof, after extinguishing the $1,500 mortgage to Jentsen aforesaid, should belong to and be her property. This excess turned out to be $1,350, exclusive of the accruing interest, and is the fund constituting the subject of this controversy, the plaintiff, Isabella Wright, claiming it on the one hand, and Alexander Wright and his creditors setting up a right to it on the other.
We suppose, unless the plaintiff can deduce her right to
As to the existence of this contract, and whether as a matter of fact it was entered into between the parties, we think the evidence sustains the finding of the referee in the affirmative. We are not aware of any principle of law, nor do we discover anything in the facts, which could legitimately impeach its. validity.
_ There seems to be an entire absence of any circumstances indicating a fraudulent purpose on the part of either of the contracting parties. At the time the agreement was made there were no creditors except Jentsen the mortgagee. By the terms of the contract he was to be paid out of the first proceeds of the sale of the property. If the contract was lawful and valid as against Alexander Wright, subsequent creditors of his have no right to complain.
We iuquire then, what should vitiate the contract as between Isabella and Alexander. It cannot be urged that there was no adequate consideration to uphold it. At the time it was entered into, they were occupying their property on Brady street, in Davenport. It was then their homestead, and although the legal title to the same was in Alexander, yet the evidence shows that much of her means derived from her father (David Hardy) went towards the improvement if not the purchase of the property. It was her province to refuse either to encumber or relinquish her dower interest in the property, yet, in obedience to his wishes, she consented to do both, but for a consideration stipulated and agreed upon at the time, namely, that whilst Alexander was to have the $1,500 borrowed, and which was to be refunded out of the first proceeds of-the sale, she was to have the residue, which turned out to be less than the amount received by him, and perhaps relatively less than her proportion of the means which she furnished in the purchase and improvement of the property would
We deem it unnecessary to extend remark on this subject. We are content witb tbe disposition wbicb the court below- and tbe referee have made of other questions not adverted to. Our object was simply to state some general considerations for approving tbe decision below, as founded upon tbe very able, clear and satisfactory report of tbe referee.
Affirmed.
