Allen v. Wegstein

• Citation: 29 N.W. 625,69 Iowa 598
• Parties: ALLEN v. WEGSTEIN AND OTHERS.
• Decision Date: 20 October 1886
• Court: Iowa Supreme Court

69 Iowa 598

29 N.W. 625

ALLEN

v.WEGSTEIN AND OTHERS.

Supreme Court of Iowa.

October 20, 1886.

Appeal from Grundy circuit court.

The defendants are husband and wife, and this action was brought to subject certain real estate, which was conveyed to Mrs. Wegstein to the payment of a judgment recovered by the plaintiff against her husband, Henry Wegstein. There was a judgment for the defendants, and the plaintiff appeals.Strubel, Kinne & Steger, for appellant.

Boies, Husted & Boies, for appellees.

SEEVERS, J.

On the twenty-sixth day of April, 1877, the plaintiff recovered a judgment in the circuit court of Iowa county against the defendant, Henry Wegstein, a transcript of which was filed in Grundy county in July thereafter. In May, 1877, one Tompkins conveyed a portion of the real estate in controversy to Mrs. Wegstein, and in 1879 and 1880 he conveyed the other real estate in controversy to her. The petition states that the conveyances were so made for the purpose of defrauding the creditors of Henry Wegstein, and that the same in fact belongs to him. The defendants deny the fraud, and claim that said real estate was purchased and paid for with money belonging to Mrs. Wegstein. It is provided by statute that a married woman may acquire property by descent, gift, or purchase, and own the same in her own right, in the same manner her husband can, and that she may receive the wages of her personal labor, and hold the same in her own right. Code, §§ 2202, 2203, 2206, 2211. As the conveyances were made to Mrs. Wegstein, and purport that the consideration therefor was paid by her, and as fraud cannot be presumed, the presumption must obtain, in the absence of any evidence to the contrary, that the real estate in controversy belongs to and is the property of Mrs. Wegstein. The burden of proof is therefore on the plaintiff to show that it belonged to Henry Wegstein. In other words, the plaintiff must establish the fraud pleaded before she can have the conveyances set aside, and subject the property to the payment of her judgment. Wolf v. Chandler, 58 Iowa, 569;S. C. 12 N. W. Rep. 600;Stephenson v. Cook, 64 Iowa, 265;S. C. 20 N. W. Rep. 182.

For the purpose of establishing the fraud, the plaintiff introduced as a witness Mrs. Wegstein, and it is now claimed that the story told by her that she inherited $1,000 in Germany, which she brought to this country with her, with which the real estate in controversy was paid for, is so improbable as to...