Gilman v. Sheets

• Decision Date: 16 October 1889
• Citation: 78 Iowa 499,43 N.W. 299
• Parties: GILMAN v. SHEETS.
• Court: Iowa Supreme Court

78 Iowa 499

43 N.W. 299

GILMAN

v.SHEETS.

Supreme Court of Iowa.

Oct. 16, 1889.

Appeal from district court, Franklin county; JOHN L. STEVENS, Judge.

Action to recover the amount due on two promissory notes, and to foreclose a mortgage given to secure their payment. Sarah K. Sheets claims a dower interest in a part of the mortgaged premises, and a decree was rendered in her favor. From that decree plaintiff appeals.Taylor & Evans, for appellant.

D. W. Henley, for appellee.

ROBINSON, J.

The mortgage involved in this action was executed by Susan Parriott on the N. E. 1/4 of section 22, township 91, range 21, in Franklin county, to secure the payment of two notes, amounting to $1,500, exclusive of interest. The mortgagor was made a party defendant, and a decree was rendered against her and in favor of plaintiff on the 26th day of May, 1887 Sarah K. Sheets claims a dower interest in a part of the mortgaged premises as the widow of John W. Sheets, deceased. The cause was tried as to her claim, and a decree rendered in her favor on the 7th day of September, 1888, and from that decree the appeal is taken.

1. A motion, filed by appellant, to suppress certain depositions taken on behalf of appellee, was overruled. The depositions were taken pursuant to a commission addressed: “To any notary public within and for Dauphin Co., Pa.” It is insisted by appellant that the designation of the notary is insufficient, for the reason that the names of the county and state in which he is authorized to act are not stated. But it is a matter of common knowledge that “Co.” is used as an abbreviation of “county” and “Pa.” as an abbreviation of “Pennsylvania,” and proof of such facts was not required. See 1 Amer. & Eng. Cyclop. Law, 15, Tit. “Abbreviations.” The abbreviations were so used in the commission that they could have had no other meanings than those named; hence there was no ambiguity, and no sufficient ground for the objection of appellant. No other question raised by the motion to suppress the deposition having been discussed by counsel, no other will be considered by us.

2. Appellee claims that she was married to John W. Sheets in Dauphin county, Pennsylvania, on the 12th day of March, 1857; that they lived together as husband and wife for two years, when he deserted her; and that they had two children, one of which was born about a year before their marriage. Sheets never lived with appellee after his alleged desertion, although he visited her once about six years after that time, and visited relatives in the county in which she resided several times after he left her. In March, 1868, he married Miss Maggie Moses in Illinois, and lived with her several years. They were reputed to be husband and wife, and had two children. That marriage was contracted on the part of Miss Moses in good faith, and with the belief that it was valid. In 1874 she obtained a divorce from Sheets on the ground of inhuman treatment. In October, 1882, he married Harriet Kibbe in Franklin county, and lived with her until his death, in October, 1883. On the 18th day of August, 1869, Sheets acquired title to the west half of the quarter section upon which plaintiff's mortgage was given, and on the 13th day of the next December he conveyed it to a grantor in the chain of title through which plaintiff claims. It is not claimed that appellee joined in that conveyance, nor in any other which had the effect to relinquish her interest in the mortgaged premises. It is contended, however, that her alleged marriage is not established by the evidence. If so much of her evidence as is incompetent under the statute be disregarded, the evidence remaining is sufficient to show that she was married as claimed. Two of her neighbors, who had personal knowledge of the facts, testify to her marriage, and to her living with Sheets, and having children by him, and the certificate of marriage was also introduced in evidence. This testimony is not contradicted.

3. It is claimed that, even if the marriage was contracted as alleged, yet, under the facts of the case, a divorce will be presumed under the rule announced in Blanchard v. Lambert, 43 Iowa, 229. We do not think this case is within that rule. In that case each party to the...