Farrow v. Farrow
| Decision Date | 12 November 1913 |
| Citation | 143 N.W. 856,162 Iowa 87 |
| Parties | MARIA FARROW, Appellant, v. MOSES FARROW, Appellee |
| Court | Iowa Supreme Court |
Appeal from Hardin District Court.--HON. C. G. LEE, Judge.
ACTION on a promissory note. Defense, Statute of Limitations. Reply Defendant had been out of the state and a non-resident so as to avoid the running of the statute. Affirmed.
Affirmed.
Lundy Wood & Baskerville, for appellant.
G. W Ward, for appellee.
This is an action at law on a promissory note for $ 596.20, dated November 6, 1875, and due one year after date, with interest at the rate of ten per cent. per annum. The note was made by one Moses Farrow to one Abigail Peterson, the mother of the plaintiff, and indorsed to plaintiff July 3, 1880, with an indorsement of payment thereon of $ 200 September 23, 1878.
The defendant admitted the execution of the note and, as a defense thereto, pleaded the following: First. That the cause of action sued on did not accrue at any time within ten years next preceding the commencement of the action, and that the same is barred by the statute of limitations. Second. That the note had been fully paid. Third. That the money, for which the note was given, was borrowed of the mother of the plaintiff for the purpose of investing in lands for the benefit of the plaintiff, with the understanding that the note would not have to be repaid to the payee therein named but would be part of the share of the plaintiff in her mother's estate. That the money borrowed, and for which the note was given, was invested in lands, and the title to the same taken in the name of the plaintiff. Fourth. That the plaintiff is estopped from maintaining this action because of her laches in holding the note from the year 1880 to the time of bringing the action without informing the defendant that she held the same uncanceled or that she made any claim against him on that account, while she, in the meantime, was getting him to pay her some of the money and to transfer his interest in all his property to her or for her benefit. Upon the issues thus tendered, the cause was tried to the court without a jury. Judgment being entered for the defendant dismissing plaintiff's petition, plaintiff appeals.
There is no evidence to support the second and third defenses interposed by the defendant; and, unless the court was justified in finding, under the evidence, the note was barred by the statute of limitations, this cause should be reversed. All the testimony bearing on this question was given by the defendant.
It appears from the evidence submitted that in 1875 the plaintiff and defendant were husband and wife and lived in Eldora, Hardin county. In 1879 it appears that the family relations were not pleasant, and the defendant left Eldora. At the time he left, he had his wife and six children; the oldest of said children being fifteen years of age and the youngest less than two years old. He visited the family at Eldora a few times during the first five years after he left, and subsequent to that time, and up to 1900 he visited the family at Eldora a dozen or twenty times. When he was back in the winter of 1879 or 1880, he stayed a couple of weeks, and then went back to Mitchell, S. D., where he stayed until December, 1880. At the time this action was commenced, he was living in Davidson county, S. D., about seven miles south of Mitchell. It appears that, within two or three months after he went out to South Dakota, he entered the timber claim that he now occupies but did not live on this claim for fifteen or twenty years. When he first went to Dakota, he engaged in the grocery business, freighting groceries from Yankton and Sioux Falls and other places before there was any railroad to Mitchell; that he then went into the grocery business with a partner and was engaged in that business for two or three years. In the summer of 1880 he went to Devils Lake, N. D., and worked for wages, but was not engaged in any business there. After that he returned to Mitchell and boarded. He was elected road supervisor in South Dakota about fifteen or twenty years ago. This was before he commenced to live upon his land. Part of the second year after he went out to South Dakota he was with a party of surveyors. When he was at Mitchell running a grocery store, he slept in the store and boarded at different restaurants. He testifies:
My residence in South Dakota has been either out of town, in Mitchell, or Lisbon township, where the tree claim is situated, or in the township of Beulah, right west of Mitchell, or in Mt. Vernon township, directly west of Beulah. Part of the time I was in one township in the southwestern part of the county. I worked at farm work and I worked at different places. My headquarters were at the timber claim. I cannot tell, within four or five years, the time when I lived in Beulah. It was about twenty years ago. I was not living on a place of my own. I stayed with a man by the name of West. Part of the time my headquarters were at Mitchell. I had a room there. I stopped at a hotel three or four years, putting in timber claims. Since I left Eldora, except two years I was at Devils Lake, I have traveled all over the United States. I had my residence at Mitchell as soon as I arrived, after I left the state of Iowa. After leaving in 1879, and up to and as late as 1892, I never formed any intention of remaining away from Iowa permanently. My intention was to return. I owned a homestead in Eldora when I went away. I had a wife and six children who were home at the time. After I left Eldora, up to and prior to 1892, I contributed to the support of my family at Eldora. After I came back to South Dakota from North Dakota, I went all over the United States to make some money. I don't think I had a permanent residence at Mitchell, or a legal residence in South Dakota, or in any other place aside from here in Eldora. I stayed at the old home, and the plaintiff was there. Always stayed there when I was here. Did not have any other home or residence, other than my home at Eldora, from 1879 to 1892. My object in going away was to make some money. When prospects in South Dakota were not very good, I had some intention of going back onto the farm before she sold out. My family relations were not pleasant when I went away, and as to whether I would come back to live with the plaintiff depended on how the family relations would be when I came back. When I came back, I didn't stay. The family relations were still unpleasant. I understood when I went away I was in duty bound to support the children, and the groceries I sent were for that purpose. I sent $ 200 to build a barn on the plaintiff's place. I sent the draft to my oldest daughter for that purpose. I had no fixed and positive intention of staying away from home or returning. I intended to go where I wanted to and do as I wanted to as circumstances might, from time to time, lead me to think it was right. I never knew that Mrs. Farrow did not intend to live with me longer until she applied for a divorce about two years ago. I never stayed long in Eldora any of the times I returned. (He further testified:) I don't think I voted in South Dakota, but I would not say positively. I served on a jury about ten years ago. I think I served on a jury twice. That was a long time ago. I was a judge or clerk of election a good many times in the last ten years. I paid poll tax until I got over age, except a whole lot of times I was gone and escaped in that way. I paid a poll tax during the time I was engaged in business in Mitchell in 1879, 1880, and 1881. When I left I didn't know how soon I was coming back. I went away to make money. I didn't know how soon I would make my pile. I didn't know whether I would come back at all or not. The idea was to go out and try to better my circumstances, and then I would do as I pleased about coming back. I have carried out the intention from the time I left here never to come back to the home at Eldora to live, but I never formed any intention of remaining away permanently.
The plaintiff testified that she had the note in question when the defendant visited here in the summer of 1880; that she had the note when he was there in 1881. Had it at all times when he came until the present time. "I knew he was here at all times because he stayed at my house, or the house that I lived in."
It is apparent from this record that, prior to the time defendant left Hardin county, he had not only a residence but a domicile in the county; that he possessed a homestead in which he resided with his wife and children; that when he left his wife and children remained on the homestead. He left his home and went West because of domestic infelicity, the character of which is not disclosed in the evidence. He claims he did not find the home pleasant then; that he left with no definite purpose in his mind of remaining away or returning; that he frequently returned after leaving, as we infer, for the purpose of ascertaining whether or not there would be any changed relationships in the home life and with the purpose of remaining if the conditions had changed; that at each visit he found the conditions were unaltered; that he left each time, as he says, with no definite purpose of either remaining away or returning. That he did return at frequent intervals, the evidence discloses, from twelve to twenty times, and remained a few days each time with his family in the home. Prior to 1892 the evidence does not show that he had a fixed domicile in any place outside the ...
To continue reading
Request your trial