Bohanan v. Maxwell
| Decision Date | 08 March 1921 |
| Docket Number | 33755. |
| Citation | 181 N.W. 683,190 Iowa 1308 |
| Parties | ELIZABETH S. BOHANAN, Appellant, v. A. RAY MAXWELL et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Adams District Court.--P. C. WINTER, Judge.
ACTION in equity by plaintiff, widow of William H. Bohanan deceased, against the administrator and heirs, in which she seeks to enforce an alleged verbal contract, entered into August 18, 1909, by which she was to nurse, care for, and work for him the remainder of his natural life, in consideration for which deceased was to deed or will all of the property, both real and personal, of which he might be possessed or to which he might be entitled at his death. She asks that she be awarded the personal property, and that certain real estate belonging to deceased, the record title of which stands in the name of two of his children, be conveyed to her. The defendants' demurrer to the petition was sustained, and thereafter plaintiff amended her petition. The amendment was in identically the same language, except as to Paragraph 6, wherein she alleged, in addition, that deceased proposed to plaintiff that he and she would be married, and that plaintiff should nurse, care for, and work for him, the remainder of his natural life, and, in consideration of said marriage and service, and in settlement of the rights of the plaintiff in the property of the deceased, he promised that he would convey to her, by deed or will, all the property, real and personal, and so on. The defendants, claiming that the new petition stated only the same matters as were contained in the original, moved to strike the latter, for that reason. Subject to the motion to strike, they demurred to the second petition. The motion to strike was overruled, but their demurrer was sustained. The plaintiff has appealed from the ruling sustaining the demurrer, and defendants have appealed from the ruling on their motion to strike. Since defendants' motion to strike and their demurrer sought to accomplish the same result, and since their demurrer was sustained, it seems unnecessary to consider the ruling on the motion to strike. The ruling sustaining the demurrer, which presents plaintiff's appeal, is--Affirmed.
Affirmed.
Stanley & Stanley and D. L. Johnston, for appellant.
Meyerhoff & Gibson, O. M. Slaymaker, and Thomas L. Maxwell, for appellees.
It is thought by appellees that the allegations of the amendment are no broader than those in the original petition; that they are substantially the same. We think the amendment is somewhat broader, in that it refers to the agreement as a promise to marry and to convey the property to plaintiff by deed or will in return for her services, whereas the matter of marriage was not referred to in the original petition; otherwise, the language is the same. The language of the original petition is that she was a widow, residing in Nebraska, and deceased was a widower, about 72 years of age, and in poor health; that he requested plaintiff "to nurse, care, and work for him for the remainder of his natural life, and verbally proposed and promised that, in consideration of said services, he would convey to this plaintiff, by deed or will, all the property," etc. The amendment reads that deceased "proposed to the plaintiff that he and she should be married, and that plaintiff nurse, care, and work for him the remainder of his natural life, and that, in consideration of said marriage and services, and in settlement of the rights of the plaintiff in the property of said Bohanan, promised that he would convey to her, by deed or will, all the property," etc. The overruling of defendants' motion to strike the amendment did not hold that the petition, as amended, stated a cause of action, but determined that the amendment should not be stricken because it was, as claimed, the same as the original. As said, the demurrer to the petition as amended was sustained. The question, then, is whether the amended petition states a cause of action. It is further alleged that plaintiff accepted the proposition of deceased, and that he resided with her at her home for about twelve months; and that they were married February 3, 1910; and that thereafter they moved to Iowa, where they resided until the death of deceased, which occurred June 17, 1918; that she performed her agreements, and defendant failed and neglected to perform his part thereof, and to convey and deliver to plaintiff the property. Plaintiff further alleges that, at the time of the death of deceased, he owned two lots in the town of Corning, and occupied the same as his homestead, and other lots in another town, 80 acres of land in Nebraska, another 80 acres of land, and two other lots in the town of Corning; that deeds to a part of said real estate had been executed by deceased and recorded in 1899, conveying the same to defendants Harriett L. Bohanan, Lucy A. McAuley, and Mary Jane Carson; that deceased had continued in possession of the property after the deeds, adversely, and until his death. It is also alleged that there was personal property in the amount of about $ 12,000. She asks that the heirs or devisees of deceased be decreed to hold the title of the property in trust for her, including the property covered by the deeds, and for general equitable relief. It will be observed that the deeds referred to were executed some 10 or 11 years before plaintiff was married to the deceased, and before the contract.
1. Appellees raise the question, and contend that the contract, as alleged, is within the statute of frauds, under Code Section 4625; and they say that, though the objection under such statute is to the testimony, the objection may be raised by demurrer, as in this case. On this last proposition they cite Wiseman v. Thompson, 94 Iowa 607, 63 N.W. 346; Graves v. Clark, 101 Iowa 738, 69 N.W. 1046. That the contract is within the statute, appellees cite Frazer v. Andrews, 134 Iowa 621, 112 N.W. 92; Gregory v. Bowlsby, 115 Iowa 327, 88 N.W. 822. It is conceded by appellant that the contract is an antenuptial contract,--they so denominate it in the argument. It is contended by appellant, as to this point, that, whatever the rule may be at law, in an equitable action for specific performance, a court of equity is not bound by the rigid rules of law as to the statutory requirements of the statute of frauds, or on the question of consideration. The contention is that equity will not permit the statute of frauds to be made an instrument for the perpetration of fraud, and that such would be the effect if, plaintiff having performed her part of the contract, the other party to the contract, or his estate, is not required to perform. They cite and quote from Pomeroy on Equity, without giving the volume or page; also, Moore v. Allen, 26 Colo. 197, 200 (77 Am. St. 255, 57 P. 698); Peek v. Peek, 77 Cal. 106, 110, 19 P. 227; Burden v. Sheridan, 36 Iowa 125; 36 Cyc. 649; Code Section 4626; Devin v. Himer, 29 Iowa 297; Stem v. Nysonger, 69 Iowa 512, 29 N.W. 433. The last two cases and the statute are in regard to the exception to the provisions of Section 4625, where the purchase money, or any portion thereof, has been received by the vendor, or when the vendee, with the actual or implied consent of the vendor, has taken and held possession under the contract, etc. They also cite Larsen v. Johnson, 78 Wis. 300 (47 N.W. 615). In that case, there was an oral contract entered into by the wife with defendant, in which the latter was to provide for her comfort and support during life, pay her debts, and take care of, manage, and improve the land; and to that end, the parties should marry and live together on the land, which should be conveyed by the wife to defendant in fee simple, and it was held that such contract was not rendered void by the statute, which requires every agreement made upon a consideration of marriage to be in writing, because the consideration for the conveyance was the provision for the support and comfort of the wife, and not the marriage of the parties. They concede, however, that, in Bartley v. Greenleaf, 112 Iowa 82, 83 N.W. 824, this court held that a similar contract was in consideration of marriage. But the contention is that it is immaterial whether we adopt the theory of the Wisconsin court or follow our own; because, in either event, where the services have been fully performed, and the marriage entered into, plaintiff is entitled to specific performance of the contract. The question arises whether plaintiff has fully performed the contract, within the contemplation of law. True, she alleges that the marriage was consummated, and she says that she performed the work until her husband's death. But for more than eight years of that time she was his wife, and was under certain obligations to her husband, as such, in regard to her services. No separate claim is made by her for her services rendered after the agreement and before the marriage. She claims full performance, and asks that all the property be conveyed to her. This feature of the case we regard as the more important one, and for that reason we do not enter into an extended discussion of the question as to the statute of frauds. It should have been said that appellant cites 13 Ruling Case Law 1015, 1020, and Wright v. Wright, 114 Iowa 748, 87 N.W. 709, to the proposition that a marriage is a sufficient consideration to support an antenuptial contract and settlement.
2. Counsel for either side concede that they find no Iowa case directly in point on the questions they both concede to be the main point in the case. Appellant says that husband and wife may contract with each other as to any matter outside the marriage relation,...
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