Cruize v. Billmire

• Citation: 69 Iowa 397,28 N.W. 657
• Parties: CRUIZE, GUARDIAN, v. BILLMIRE.
• Decision Date: 23 June 1886
• Court: United States State Supreme Court of Iowa

69 Iowa 397

28 N.W. 657

CRUIZE, GUARDIAN,

v.BILLMIRE.

Supreme Court of Iowa.

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 sliare in real estate owned by the said Peter in his life-time. Trial to the court, judgment for the defendant, and the plaintiff appeals.Bronson & Leroy and J. H. Trewin, for appellant.

Calvin Yoran, for appellee.

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, that 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 obtain even in such cases. Ellis v. Ellis, 58 Iowa, 720;S. C. 13 N. W. Rep. 65;Smith v. Smith, 64 Iowa, 682;S. C. 21 N. W. Rep. 137.

Because the parties lived separate and apart for so many years, and the fact that the defendant purchased land in reliance on the fact there had been a divorce, and Peter C. Hummel so stated, the defendant insists the plaintiff is estopped from...