28 N.W. 657 (Iowa 1886), Cruize v. Billmire

Citation:28 N.W. 657, 69 Iowa 397
Opinion Judge:SEEVERS, J.
Party Name:CRUIZE, GUARDIAN, v. BILLMIRE
Attorney:Bronson & Leroy and J. H. Trewin, for appellant. Calvin Yoran, for appellee.
Case Date:June 23, 1886
Court:Supreme Court of Iowa
 
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28 N.W. 657 (Iowa 1886)

69 Iowa 397

CRUIZE, GUARDIAN,

v.

BILLMIRE

Supreme Court of Iowa, Des Moines

June 23, 1886

Appeal from Delaware Circuit Court.

THE plaintiff is guardian of Hannah Hummel, an insane person, and he claims that his ward is the widow of Peter C. Hummel. This action was brought to recover his ward's distributive share in real estate owned by the said Peter in his life-time. Trial to the court, judgment for the defendant, and the plaintiff appeals.

REVERSED.

Bronson & Leroy and J. H. Trewin, for appellant.

Calvin Yoran, for appellee.

OPINION

[69 Iowa 398] SEEVERS, J.

There is no serious dispute as to what we regard as the material facts in this case. We find that the plaintiff's ward and Peter C. Hummel were married in the state of Pennsylvania, and lived and cohabited together as husband and wife until about 1852, when they separated, and never afterwards resumed the marital relation. In 1861 Peter C. Hummel obtained title to certain real estate, which in 1874 he sold and conveyed to the defendant. The ward of the plaintiff did not join in such conveyance. There is no record evidence that said parties were divorced. Peter C. Hummel, however, on more than one occasion, stated that a divorce had been granted, and his neighbors, or some of them, so understood. A divorce cannot be thus established, for the reason that in this country there must at one time have existed record evidence of such fact. Counsel for the defendant, however, insist that, although no record evidence of a divorce has been introduced, one should be presumed. That such a rule obtains, and has been held applicable in some instances, is undoubtedly true. 2 Bish. Mar. & Div., §§ 514-518; Blanchard v. Lambert, 43 Iowa 228. But our attention has not been called to any authority which holds that such rule has been held applicable in any case where neither party has been married again, or has lived and cohabited with another person as husband or wife, and we think no authority can be found which so holds. As we understand, the presumption can only be invoked in aid of innocence and the legitimacy of offspring; nor does it always

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obtain even in such cases. Ellis v. Ellis, 58 Iowa 720, 13 N.W. 65; Smith v. Smith, 64 Iowa 682.

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Because the parties lived separate and apart for so many years, and the fact that the defendant...

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