Kwentsky v. Sirovy
Decision Date | 07 May 1909 |
Citation | 121 N.W. 27,142 Iowa 385 |
Parties | KWENTSKY v. SIROVY ET AL. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; F. O. Ellison, Judge.
Originally this was an action for the partition of 72 1/2 acres of land in which plaintiff claimed to be the owner of an undivided one-half thereof, and in which she admitted that defendant Sirovy held the other one-half. Afterward plaintiff asserted title to the entire tract, and asked that it be quieted against both defendants, and, in the event that could not be done, that she have judgment quieting her title to one half thereof and judgment for the value of the other half against defendant Shunka. On the issues joined the case was tried to the court resulting in a decree quieting plaintiff's title to one half the land and a judgment against Shunka for the value of the other half. Defendants appeal. Affirmed in part. Reversed and remanded in part.S. K. Tracy and J. H. & E. C. Preston, for appellants.
Clark & Clark and Grimm, Trewin & Roberts, for appellee.
Plaintiff and defendant Frank Shunka were married in the year 1877, and lived together as husband and wife until the year 1899. Shunka acquired title to 80 acres of land about the time of the marriage, and this was improved through the joint efforts and earnings of himself and wife, and finally sold in the year 1881. On September 24, 1881, with the proceeds of the sale Shunka purchased 160 acres of land from one Korab, and on November 16, 1881, he, Frank Shunka, for a valuable, if not an adequate, consideration, conveyed one-half thereof to plaintiff, his wife. Thereafter 20 acres of this land were sold, leaving 140 acres in the tract owned by plaintiff and her then husband, Shunka, as tenants in common. In the year 1898 one Kwentsky was employed by Shunka to work upon the farm, and he came into the household as a farm laborer. This man Kwentsky soon became unduly intimate with plaintiff Shunka's wife, and trouble naturally arose between husband and wife regarding this matter. Plaintiff admitted her adulterous relations with the hired man, and, in order that the trouble might be settled, plaintiff and her husband went to see an attorney, one Mekota, with a view to obtaining a divorce and an adjustment of their property rights. Acting under the advice of this attorney, it was agreed that defendant Shunka should bring an action for divorce based upon his wife's adultery, the wife to pay the costs of the proceedings. It was also agreed that plaintiff should deed to Shunka her interest in the westerly 67 1/2 acres of the 140-acre farm, and that defendant Shunka should convey to plaintiff, his then wife, his interest in the remaining 72 1/2 acres of land (being the property in controversy herein). Conveyances were accordingly made of date August 29, 1899, and the petition for divorce was filed. Afterward, and before the divorce was granted, defendant Shunka concluded to consult an attorney about the matter, and, as a result thereof, he dismissed the divorce action which had been commenced in his name. This was done on October 4, 1899. Thereafter, and on the 12th day of October, 1899, the parties got together by their attorneys, and a stipulation was entered into whereby the divorce action was to be reinstated, and alimony, if awarded, should be on the following basis: The deed made by Shunka to his wife on August 25, 1899, for his interest in the 72 1/2 acres of land was to be set aside, and plaintiff was to receive from her husband the sum of $600 in cash and the return of a note which she had made to him for the sum of $150.
As this stipulation is important, we here copy the same in full:
The stipulation was made on the day the case was to be heard in the district court, and but a few hours before the decree was entered. The divorce case was reinstated and the matter heard before the district court of Linn county, Iowa, on October 12, 1899, Hon. W. G. Thompson, judge, presiding. A divorce was granted to Frank Shunka, and a decree was prepared and signed by the judge which confirmed the stipulation as to alimony. This decree so far as material read in this wise:
The words in brackets were not in the original decree prepared by the judge. The decree as signed by the judge without these words in brackets was duly entered of record on October 13, 1899, and Shunka paid the $600 and delivered the note as agreed by the parties. Three or four days after the formal entry of the decree upon the proper records, but before the record was signed by the judge, the attorneys for the plaintiff in the divorce action, defendant Shunka here, went before Judge Thompson, and without any notice to the defendant in that action, plaintiff here, or to her attorneys, and, as they say, in order to have the decree more certain as to the property rights of the parties, induced Judge Thompson to enter the words appearing in brackets in the original form of decree and in the formal decree as it then appeared of record. It is claimed on one side, and denied on the other, that the record of the October, 1899, term of court, was formally approved and signed by Judge Thompson at the next January term of court. On February 3, 1903, defendant Shunka sold and conveyed by warranty deed the entire 140 acres of land to his codefendant Sirovy, and Sirovy immediately entered into the possession thereof. Shortly thereafter one Kubek went to plaintiff herein, and told her that she still had an interest in the 140 acres of land, to which she responded that she “did not know it.” Kubek then advised her to consult her attorneys, which she did, and on March 27, 1903, she commenced this action, in which she alleged under oath that she was the owner of one half of the 72 1/2 acres of land and defendant Sirovy the owner of the other half. In February, 1904, she filed an amendment to her petition, in which she alleged ownership of one-half the land, and pleaded that the insertion of the words added to the decree by Judge Thompson constituted an alteration thereof, and that they were made without lawful warrant or authority. Afterwards, and in November of the year 1904, she filed an amendment to her petition, in which she claimed ownership of the entire 72 1/2 acres against both defendants, averred that the stipulation which constituted the basis of the divorce decree in so far as it related to property rights was and is...
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