John H. Reichart v. O. O. Wilhelm, . the Same v. Mary J. Wilhelm

• Decision Date: 17 October 1891
• Citation: 50 N.W. 19,83 Iowa 510
• Parties: JOHN H. REICHART et al., Appellees, v. O. O. WILHELM et al., Appellants. THE SAME v. MARY J. WILHELM et al., Appellants
• Court: Iowa Supreme Court

50 N.W. 19

83 Iowa 510

JOHN H. REICHART et al., Appellees, v. O. O. WILHELM et al., Appellants.

THE SAME v. MARY J. WILHELM et al., Appellants

Supreme Court of Iowa, Des Moines

October 17, 1891

Appeal from Cedar District Court.--HON. J. D. GIFFEN, Judge.

ACTION in equity by the creditors of the estate of B. Wilhelm deceased, against Mary J. Wilhelm, his widow, and O. O Wilhelm, his son. The relief sought is the setting aside of certain alleged conveyances of land by the deceased to the defendants, and subjection of the property to the payment of the claims of the plaintiffs. There were decrees for the plaintiffs, and the defendants appeal.

Affirmed.

Wheeler & Moffitt, for appellants.

Wolf & Hanley, W. N. Treichler and E. M. Brink, for appellees.

OPINION

ROTHROCK, J.

The two causes have been submitted to us upon the same abstracts and arguments, and both will be disposed of in one opinion. The actions, being in equity, are triable anew in this court, and are to be determined upon the preponderance of the evidence and the equitable rights of the parties arising therein.

B Wilhelm died intestate on the nineteenth day of May, 1888. His estate was insolvent. The valid claims against the estate amounted to about two thousand dollars. The greater part of this sum will be lost to the creditors if the land in controversy should be held to be the property of the widow and son, who are defendants in these actions. There is no dispute that B. Wilhelm was the owner of the land until about July 27, 1887. The defendants claim that on that day B. Wilhelm executed two deeds of the land, which conveyed to them each an undivided half of the same, and that said deeds were made for a valuable and full consideration. It is claimed in behalf of the creditors that these deeds were never delivered to the defendants by B. Wilhelm, nor by anyone for him. The undisputed fact is that when he died the deeds were found in his dwelling-house in a box where his private papers had been kept for many years. The box belonged to the deceased, and he had control of it. There was no lock and key to it, and the defendants had access to it, and it was also used by O. O. Wilhelm as a place of deposit for his private papers. Some three days after the death of B. Wilhelm the defendant, O. O. Wilhelm, took these deeds from the box, and filed them for record in the county recorder's office. The defendants both testify to certain...