Gilman v. Sheets

Citation43 N.W. 299,78 Iowa 499
PartiesGILMAN v. SHEETS
Decision Date16 October 1889
CourtUnited States State Supreme Court of Iowa

Decided October, 1889

Appeal from Franklin District Court.--HON. JOHN L. STEVENS, Judge.

ACTION to recover the amount due on two promissory notes, and to foreclose a mortgage given to secure their payment. Sarah K Sheets claims a dower interest in a part of the mortgaged premises, and a decree was rendered in her favor. From that decree plaintiff appeals.

MODIFIED AND AFFIRMED.

Taylor & Evans, for appellant.

D. W Henley, for appellee.

OPINION

ROBINSON, J.

The mortgage involved in this action was executed by Susan Parriott on the northeast quarter of section 22, township 91, range 21, in Franklin county, to secure the payment of two notes, amounting to fifteen hundred dollars, exclusive of interest. The mortgagor was made a party defendant, and a decree was rendered against her and in favor of plaintiff on the twenty-sixth day of May, 1887. Sarah K. Sheets claims a dower interest in a part of the mortgaged premises as the widow of John W. Sheets, deceased. The cause was tried as to her claim, and a decree rendered in her favor on the seventh day of September, 1888, and from that decree the appeal is taken.

I. A motion, filed by appellant, to suppress certain depositions taken on behalf of appellee, was overruled. The depositions were taken pursuant to a commission addressed: "To any notary public within and for Dauphin Co., Pa." It is insisted by appellant that the designation of the notary is insufficient, for the reason that the names of the county and state in which he is authorized to act are not stated. But it is a matter of common knowledge that "Co." is used as an abbreviation of "county" and "Pa." as an abbreviation of "Pennsylvania," and proof of such facts was not required. See 1 Amer. & Eng. Cyclop. Law, 15, Tit. "Abbreviations." The abbreviations were so used in the commission that they could have had no other meanings than those named; hence there was no ambiguity, and no sufficient ground for the objection of appellant. No other question raised by the motion to suppress the deposition having been discussed by counsel, no other will be considered by us.

II. Appellee claims that she was married to John W. Sheets in Dauphin county, Pennsylvania, on the twelfth day of March, 1857; that they lived together as husband and wife for two years, when he deserted her; and that they had two children, one of which was born about a year before their marriage. Sheets never lived with appellee after his alleged desertion, although he visited her once about six years after that time, and visited relatives in the county in which she resided several times after he left her. In March, 1868, he married Miss Maggie Moses in Illinois, and lived with her several years. They were reputed to be husband and wife, and had two children. That marriage was contracted on the part of Miss Moses in good faith, and with the belief that it was valid. In 1874 she obtained a divorce from Sheets on the ground of inhuman treatment. In October, 1882, he married Harriet Kibbe in Franklin county, and lived with her until his death, in October, 1883. On the eighteenth day of August, 1869, Sheets acquired title to the west half of the quarter section upon which plaintiff's mortgage was given, and, on the thirteenth day of the next December, he conveyed it to a grantor in the chain of title through which plaintiff claims. It is not claimed that appellee joined in that conveyance, nor in any other which had the effect to relinquish her interest in the mortgaged premises. It is contended, however, that her alleged marriage is not established by the evidence. If so much of her evidence as is incompetent under the statute be disregarded, the evidence remaining is sufficient to show that she was married as claimed. Two of her neighbors, who had personal knowledge of the facts, testify to her marriage, and to her living with Sheets, and having children by him, and the certificate of marriage was also introduced in evidence. This testimony is not contradicted.

III. It is claimed that, even if the marriage was contracted as alleged, yet, under the facts of the case, a divorce will be presumed under the rule announced in Blanchard v Lambert, 43 Iowa 228. We do not think this case is within that rule. In that case each party to the first marriage claimed to have contracted a subsequent marriage, and it was held that it would be presumed that the relations created by the first marriage...

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