115 N.W. 912 (Iowa 1908), Smith v. Fuller

Citation:115 N.W. 912, 138 Iowa 91
Opinion Judge:DEEMER, J
Party Name:LOUISA SMITH, Appellant, v. A. E. FULLER ET AL., Appellees, and three other cases
Attorney:Jacob Sims, for appellant. Turner & Cullison, W. H. Killpack, and Ira R. Stitt, for appellees.
Case Date:April 07, 1908
Court:Supreme Court of Iowa
 
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Page 912

115 N.W. 912 (Iowa 1908)

138 Iowa 91

LOUISA SMITH, Appellant,

v.

A. E. FULLER ET AL., Appellees, and three other cases

Supreme Court of Iowa, Des Moines

April 7, 1908

Appeal from Pottawattamie District Court.-- HON. N.W. MACY, Judge.

ACTION in equity to establish plaintiff's dower in certain lands, of which one Frank Smith died seised. The trial court dismissed plaintiff's petition, and she appeals.-- Reversed and remanded.

Reversed.

Jacob Sims, for appellant.

Turner & Cullison, W. H. Killpack, and Ira R. Stitt, for appellees.

OPINION

Page 913

[138 Iowa 92] DEEMER, J.

One Frank E. Smith at one time owned the lands in controversy. He sold a tract to defendant Richards in the year 1888, and in the conveyance described himself as an unmarried man. In the years 1890 and 1891 he sold tracts to defendant Griffith, his wife, Anna, joining in the conveyance. In the year 1899 he sold other tracts to defendants Fuller and Grobe, and in the conveyance described himself as a widower. Plaintiff claims that she married Smith in the year 1875; that she was never divorced from him, was his lawful widow at the time of his death; and that she never released her dower interest in any of the lands sold by him to the defendants. Defendants claim title [138 Iowa 93] under their conveyances from Smith, and deny that plaintiff is Smith's widow. The facts in the case are complicated, and the application of the law thereto of considerable difficulty. It appears that plaintiff was married in April of the year 1872 at Farmington, Iowa to one Sylvanders. They lived together as husband and wife for three or four months, when Sylvanders left home with the ostensible purpose of going to Burlington, Iowa on a business trip, and so far as the record shows has never since been heard from. Plaintiff continued to live in Farmington until September, 1875, when she claims to have married Smith, who for a number of years had resided in that vicinity; the marriage, according to her contention, having been solemnized by a justice of the peace at the town of La Grange, in the State of Missouri. On the same day, or very soon thereafter, they returned to Lee county, Iowa announced their marriage to their friends, and lived together there or in that vicinity as husband and wife for about seven years, excepting one year of that time, during which Smith was absent. The testimony is ample and undisputed that they called themselves husband and wife, and held themselves out to the world as bearing that relation, and on at least one occasion joined as husband and wife in the execution of a mortgage. One child was born of this union. In the year 1882 Smith left, saying that he was going to Council Bluffs; but there is no evidence that he expressed any purpose of abandoning the plaintiff, or that he in any manner denied or repudiated her as his wife. From that time plaintiff claims not to have had any word from him for nearly twenty years, except that she heard and believed that he was dead.

Before Frank E. Smith made plaintiff's acquaintance, and during a part of the time while he lived at Farmington, it appears that for a time he lived with a woman called "Net" or "Nettie." The nature of their relations is not clearly shown, but the testimony is to the effect that some time before Smith met the plaintiff this woman

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disappeared, [138 Iowa 94] having left her then home with a traveling man. Who she was, where she came from, whether married to Smith, and, if married, whether she be dead or divorced, no one professes to know. We believe from the testimony, however, that she lived with Smith as his housekeeper and mistress. Some seven years after Smith left plaintiff on his announced trip to Council Bluffs, plaintiff was married in Lee county, Iowa to one Dickinson, and with him she lived as his wife until his death in the year 1902. When Smith left plaintiff, he took up his residence in Pottawattamie county, Iowa where in the year 1889 he married one Ann Norton, with whom he lived until her death. Thereafter he married another woman known as Mrs. Scheyli, with whom he lived until he procured a divorce from her some time prior to the year 1902. In the year 1902, soon after death and the divorce court had released the parties as above stated from their last prior matrimonial entanglements, Smith returned to the plaintiff, and in November, 1902, a marriage ceremony was performed between them, and they lived together until his death put an end to the chapter of their connubial complications. Plaintiff says that the reason that this last marriage ceremony was performed was because, since their separation she had been married and lived with another man, she thought that, in order to live with Smith again, she ought to be married to him. It is admitted of record that during the period between his separation from plaintiff and their final reunion in 1902 Smith became vested with the title and ownership of the several tracts of real estate involved in these controversies, and made conveyances thereof under and through which the appellees derive their title; and that plaintiff never relinquished her dower right, if any she had, in any part of said property. It is shown, also, that the court records of the counties of Lee, Van Buren, and Pottawattamie, the only counties of which either Smith or plaintiff was a resident, during the period of their separation disclose no decrees of divorce or divorce proceedings between them.

[138 Iowa 95] Counsel for defendants very strenuously insist that plaintiff and Smith were never married in fact; that if they were married in form the marriage was...

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