Hager v. Brandt

• Decision Date: 24 May 1900
• Citation: 111 Iowa 746,82 N.W. 1016
• Parties: HAGER ET AL. v. BRANDT ET AL.
• Court: Iowa Supreme Court

111 Iowa 746

82 N.W. 1016

HAGER ET AL.

v.BRANDT ET AL.

Supreme Court of Iowa.

May 24, 1900.

Appeal from district court, Bremer county; J. F. Clyde, Judge.

Action in partition. The petition was dismissed, and the plaintiffs appeal. Affirmed.E. L. Smalley, for appellants.

Sager & Sweet and G. W. Ruddick, for appellees.

LADD, J.

In 1864 Thomas Hager acquired the 40 acres of land in controversy, and in 1866 conveyed it to one Read, under whom, through mesne conveyances, the defendant Brandt claims title. The plaintiffs alleged that Hager was then married to Eva Hager, who did not join in the deed, and that they are entitled to an undivided one-third of the land, as her heirs. This deed was signed by the grantor, making his mark, and by “Elizabeth Hager,” who acknowledged it before a justice of the peace as his wife. Thomas Hager and Elizabeth Romesburg lived together as husband and wife several years in Bremer county, and were so doing at the time this instrument was executed. Shortly before they left there, in 1866, Miller says, she advised him they were not married. However, they were then keeping house alone, and the record is silent as to how long their relations continued. The evidence throws some doubt on the identity of plaintiff's ancestor as the grantor of this land, but, conceding this to have been established, it utterly fails to show the existence of the marital relation between Thomas and Eva Hager at the time the deed was executed. True, Simon Hager testified that they were married, but he did not undertake to say at what time. For all that appears, it may have been after the return of Thomas to Fayette county, Pa., about 1872. We are not permitted to presume marriage from the fact of having children, especially in view of the circumstance that at that very time he was cohabiting with another woman as his wife. If presumptions are to be indulged in, they are in favor of innocence, and that Hager did not live with the Romesburg woman in a state of adultery. There is no evidence that Thomas and Eva ever lived together, and it affirmatively appears that from 1864 to the time of his death, in 1883, he lived apart from her, though in the same community. This land has been held and occupied by Brandt and his grantors for over 30 years under the well-grounded supposition that the wife of Hager joined in the conveyance to Read, and they ought not to be deprived of their property without clear proof that she who made her mark as...