Furrow v. Athey

• Decision Date: 08 June 1887
• Citation: 33 N.W. 208,21 Neb. 671
• Parties: FURROW AND OTHERS v. ATHEY AND OTHERS.
• Court: Nebraska Supreme Court

21 Neb. 671

33 N.W. 208

FURROW AND OTHERS

v.ATHEY AND OTHERS.

Supreme Court of Nebraska.

June 8, 1887.

Syllabus by the Court.

A deed of conveyance of real estate executed by the husband direct to the wife, in the absence of fraud, and where neither the rights of creditors nor subsequent purchasers intervene, will convey to her such real estate without the intervention of a third party as trustee.

Where the husband and wife occupy a homestead, the title to which is in the name of the husband, a deed of conveyance from the husband to the wife, signed and acknowledged by him alone, is valid, although not signed by and acknowledged by the wife.

Appeal from Richardson county.

Aug. Schoenheit, for plaintiffs.

E. W. Thomas, E. A. Tucker, and Babcock & Davidson, for defendants.

REESE, J.

The first question presented in this case is whether a husband can convey his real estate to his wife without the intervention of a third party as trustee in a case where no fraud is shown, and the rights of the creditors or other third parties do not intervene. As has been decided by this court, the deed from a husband to the wife was void by the common law. Smith v. Dean, 15 Neb. 432, 19 N. W. Rep. 642;Johnson v. Vandevort, 16 Neb. 144, 19 N. W. Rep. 461, 20 N. W. Rep. 122. But in equity such deeds have been upheld when any equitable reason therefor was shown. Id. There is some evidence tending to prove a valuable consideration for the deed in question, growing out of money received by the wife from her separate property, and given to her husband. If this was true, it would raise an equity in favor of the wife which would support the deed. There is sufficient evidence to sustain the finding of the court upon this point, and the decree could not, therefore, be molested. But aside from this we can see no reason why the decree of the district court is not correct. It appears that in 1868, Charles Furrow, the husband, now deceased, purchased the land in question from the United States. At that time he, with defendant, his wife, settled upon it, and they resided there together until his death, which occurred in 1880. In 1879, while in poor health, he conveyed the premises to her. It was their home. They had a family of children, the plaintiffs, and the deed was evidently executed to her in order that she might be enabled to rear and educate the family in which she was as much interested as the husband, and which he fully understood at the time he made the conveyance. If it had been made to a third party as a trustee, and by him conveyed to defendant, it perhaps would never have been questioned. It is just as good without such intervention. Huber v. Huber, 10 Ohio, 373;Garlick v. Strong, 3 Paige, 452;Coates v. Gerlach, 44 Pa. St. 43; Story v. Marshall, 24 Tex. 305;Barker v. Koneman, 13 Cal. 9;Deming v. Williams, 26 Conn. 226; Brookbank v. Kennard, 41 Ind. 339;Hunt v. Johnson, 44 N. Y. 27;Eddins v. Buck, 23 Ark. 507; Wilder v. Brooks, 10 Minn. 50, (Gil. 32.)

It is next contended that the deed was void under the provisions of chapter 36 of the Compiled Statutes, and particularly under section 4 of said chapter, the property being the homestead at the time of the conveyance. Section 4 is as follows: “The homestead of a married person cannot...