Kwentsky v. Sirovy
| Decision Date | 07 May 1909 |
| Parties | HELENA KWENTSKY (formerly HELENA SHUNKA), appellee, v. FRANK SIROVY and FRANK SHUNKA, Appellants |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. F. O. ELLISON, Judge.
ORIGINALLY this was an action for the partition of seventy-two and one-half 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.
Affirmed on defendant Sirovy's appeal and reversed and remanded on defendant Shunka's appeal.
S. K Tracy and J. H. & E. C. Preston, for appellants.
Clark & Clark and Grimm, Trewin & Roberts, for appellee.
OPINION
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 eighty 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 one hundred and sixty 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 twenty acres of this land were sold, leaving one hundred and forty 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 sixty-seven and one-half acres of the one hundred and forty acre farm, and that defendant Shunka should convey to plaintiff, his then wife, his interest in the remaining seventy-two and one-half 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 seventy-two and one-half 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:
Whereas, the plaintiff commenced an action for a divorce against the defendant for the October term, 1899, of said court, and whereas on the 4th day of October, 1899, the said plaintiff filed a dismissal of said cause, and whereas upon the filing of such dismissal the said district court dismissed said cause, and whereas it is desired between both the plaintiff and the defendant to have it determined as to whether the plaintiff is entitled to a divorce or not, it is agreed by and between the plaintiff and the defendant that said order of dismissal shall be set aside by said court, and said cause be reinstated for hearing at the present October term, 1899, of said court, this defendant appearing hereby thereto, and it is further stipulated and agreed that, in case the plaintiff shall be enabled to establish to the satisfaction of the court that he is entitled to a divorce from the defendant, then that the alimony and property rights between plaintiff and defendant shall be settled and adjusted as follows, to wit: It is agreed that the deed executed by plaintiff to defendant on the 25th day of August, 1899, for the following described premises, to wit: The east seventy acres, of the east half of the northwest one-quarter and also the north two and one-half acres of the west ten acres of the east half of the northwest quarter, all in section 20, township 82, range 7 west, Linn County, Iowa, containing seventy-two and one-half acres, more or less, shall be decreed by this court to be set aside, and held for naught, and the title to said premises by this decree to be vested in the said plaintiff, free from any and all claims of the said defendant thereto. It is further agreed that the plaintiff shall pay to the defendant upon the entering of this decree the sum of $ 600 in money, and deliver to her a certain note for the sum of $ 150 he now holds against the defendant, which payment of said money and delivery of said note shall be in full of any and all claims for alimony or otherwise which the defendant may have against the said plaintiff in and to any and all of his property both real and personal, the terms of this contract as to alimony to be carried out immediately upon the entering of said decree, and all costs of this action to be paid by the plaintiff. Witness our hands this 12th day of October, 1899. Frank Shunka. Helena Shunka.
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:
And, in accordance with said stipulation, it is further ordered, adjudged and decreed that the deed executed by plaintiff and defendant on August 25, 1899, and recorded in volume 238, page 168, of the Records of Linn County, Iowa, purporting to convey to defendant the east seventy acres of the east one-half of the southwest quarter, also the north two and one-half acres of the west ten acres of the east one-half of the northwest quarter, all in section 20, township 82, range 7, west of the Fifth P. M., Linn County, Iowa, be, and the same is hereby, set aside and is held for naught, and the title to said premises revested in plaintiff, free and clear from all right, title or claim of the said defendant therein. That plaintiff shall pay defendant as alimony the sum of $ 600 in money, and deliver to her $ 150 note mentioned in said stipulation, which shall be in full of any and all claims for alimony or otherwise which the said defendant may have against the said plaintiff in and to any and all of his property both real and personal [as well as that heretofore held in common by said parties], all of which is finally adjudged and decreed by the court. [Signed] Wm. G. Thompson, Judge 18th Judicial District of Iowa.
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, to 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 one hundred and forty 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 one hundred and forty 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 seventy-two and one-half acres of land and defendant Sirovy the...
To continue reading
Request your trial