Alvis v. Alvis

• Decision Date: 12 April 1904
• Citation: 99 N.W. 166,123 Iowa 546
• Parties: WILLIAM S. ALVIS, Administrator of the Estate of Henry J. Alvis, Deceased, Appellant, v. EDWARD J. ALVIS, et al., Appellees
• Court: Iowa Supreme Court

99 N.W. 166

123 Iowa 546

WILLIAM S. ALVIS, Administrator of the Estate of Henry J. Alvis, Deceased, Appellant, v. EDWARD J. ALVIS, et al., Appellees

Supreme Court of Iowa, Des Moines

April 12, 1904

Appeal from Lee District Court.--HON. HENRY BANK, JR., Judge.

ACTION to recover possession of certain described real estate. There was a decree establishing title in defendants under their cross-petition, subject, however, to a homestead right on the part of plaintiff. Plaintiff appeals.--Modified.

MODIFIED and AFFIRMED.

Hollingsworth & Blood and J. P. Kennedy for appellant.

James C. Davis for appellees.

OPINION

BISHOP, J.

The action was properly brought at law, but on coming in of the answer and cross-petition, and by consent of parties, it was transferred to the equity docket, and tried as an equitable action. The action was commenced by Henry J. Alvis and Electa, his wife, against the defendants, who are their sons. After trial, but before decree, Electa Alvis died intestate and pending this appeal Henry J. Alvis has also died intestate. Upon motion the administrator of his estate has been substituted as appellant. The real estate in controversy consists of a farm of one hundred and twenty acres, situated in Lee county, and plaintiffs claim possession thereof as their homestead; that defendants are wrongfully in possession of the premises, claiming ownership and a right of exclusive possession. The defendants, by their answer admit possession, and that they claim to be entitled thereto exclusively by reason of absolute title to the property. The averments of the answer and cross-petition will be more fully referred to in the course of this opinion. The initial facts out of which the controversy grows may be stated as follows In 1856 the plaintiff, Henry J. Alvis, acquired title to the property by purchase. At the time thereof he executed a purchase-money mortgage to secure the sum of $ 850, his wife joining therein. Plaintiffs, with their family, then immediately took up their residence on the lands, the defendants being at the time unmarried, and constituting a part of the family. Defendants continued to thus reside until the breaking out of the War of the Rebellion, when they enlisted in the army. It is the contention of defendants in their pleadings and in their testimony that as they were about to go away plaintiffs stated that without their aid the farm would be lost, as the incumbrance thereon could not be otherwise met; that thereupon it was orally agreed between themselves and plaintiffs that if they (defendants) would contribute sufficient funds to pay off the existing mortgage, plaintiffs would, in consideration thereof, deed the property to them upon their return from the war. Defendants do not admit of any qualifications to the agreement as thus contended for by them. Electa Alvis was too ill to attend the trial, and her testimony was not taken. Henry J. Alvis, as a witness, admits substantially that such an agreement was made, but with the qualification that the conveyance was to be subject to the right of homestead on the part of himself and wife during their natural lives. Defendants were absent about five years, and during that time they sent home to their parents the sum of about $ 2,000, sufficient of which was used to pay off said mortgage incumbrance. Defendants allege and prove that in November, 1864, plaintiff Henry J. Alvis executed and duly acknowledged a warranty deed conveying the premises to defendants. The instrument is in the following form: "For the consideration of $ 1,000, I, Henry J. Alvis, hereby convey to Edward H. Alvis and Hiram J. Alvis the following tract of land [describing it], and warrant the title against all persons whomsoever. In witness whereof," etc., "this 9th day of November, 1864. [Signed] Henry J. Alvis." Upon the return of defendants the deed was delivered to them, and by them placed of record. It will be observed that the name of Electa Alvis is not mentioned anywhere in the instrument. It appears, however, that under circumstances hereinafter to be noted, and in the year 1899, there was written on the deed before the signature of Henry J. Alvis the following, "In witness where, I herewith sign my name this 6th day of September, 1899." To this Mrs. Alvis signed her name and made acknowledgment in due form of law. The deed was then recorded. That Mrs. Alvis had knowledge of the deed as executed and delivered by her husband is reasonably clear. It is made to appear that she gave as a reason why she did not join in the execution thereof that no provision was made therein for her homestead.

That the deed, as executed by Henry J. Alvis, was sufficient to convey title to so much of the lands as were not impressed with the character of a homestead, was conceded by counsel in argument at the bar, and to that extent, therefore, the decree of the trial court may be affirmed without further consideration. Accordingly, we have the question of the homestead tract, and the rights of the parties as related thereto, alone to deal with. Defendants seek to defend title and right of possession upon substantially two grounds First, they assert that the parol agreement to convey to them, having been followed by possession, was sufficient to pass title, and should therefore be enforced, notwithstanding it may be said that no deed in writing signed by the husband and wife was ever executed as required by the statute; second, that the deed as executed by Henry J. Alvis in 1864, and signed by Electa Alvis in 1899, was a substantial compliance with the statute, and thereby title and right of possession became perfected in them, said defendants. By section 2279 of the Revision of 1860 it was provided that "a conveyance [of the homestead] by such owner is of no validity unless the husband and wife, if the owner is married, concur in and sign such conveyance." The present Code (section 2974), which was in force at the time Mrs. Alvis signed the deed, requires that the wife "must join in the execution of the same joint instrument. " Now, we have held that the statute has no application to those cases where an oral contract is made for the transfer of property impressed with homestead rights, it being made to appear that possession and control is given in consummation of such contract. Such are the cases of Drake v. Painter, 77 Iowa 731, 42 N.W. 526 and Winkleman v. Winkleman, 79 Iowa 319, 44 N.W. 556, cited and relied upon by counsel for appellees. The theory upon which those cases proceed is that by the act of giving over possession and control there is an abandonment of the homestead right. That parties entitled to homestead rights may abandon them, and so divest themselves wholly of such right is universal doctrine. If, therefore, defendants in this case have brought themselves within the rule of the cases cited, we may without further consideration affirm the decree entered in their favor. But we are unable to make such a finding of facts as will warrant the application of the rule invoked. As we read the record before us, the plaintiffs have never gone to the length of abandoning their homestead. They continued to live there after the return of their sons, and the appellant resided there at the time of his death. They asserted control in many ways, made improvements, kept stock on the premises, and took a share of the proceeds of the farm, and otherwise asserted and enjoyed separate and independent rights and interests. True, the defendant Edward H. Alvis, with his family, also lived upon the premises, and in the same house with plaintiffs, and in most respects dominated in the operation of the farm. But, conceding this, there is no sufficient basis upon which to plant the...