Paup v. Shelby County State Bank of Harlan

• Decision Date: 15 May 1923
• Docket Number: 34972
• Citation: 193 N.W. 529,195 Iowa 1213
• Parties: SARAH ANNA PAUP, Appellant, v. SHELBY COUNTY STATE BANK OF HARLAN, Executor, et al., Appellees
• Court: Iowa Supreme Court

193 N.W. 529

195 Iowa 1213

SARAH ANNA PAUP, Appellant, v. SHELBY COUNTY STATE BANK OF HARLAN, Executor, et al., Appellees

No. 34972

Supreme Court of Iowa, Des Moines

May 15, 1923

Appeal from Shelby District Court.--EARL PETERS, Judge.

SUIT in equity, to quiet title to real estate. Petition was dismissed, and decree entered adjudging the title to be in the estate of W. L. Paup, deceased, and that plaintiff's only interest in the real estate was her dower interest, as surviving widow of W. L. Paup, deceased. Facts appear in the opinion. Plaintiff appeals.

Affirmed.

D. O Stuart, Sims & Kuehnle, and W. E. Kahler, for appellant.

Thomas H. Smith, for appellees.

ARTHUR J. PRESTON, C. J., EVANS and FAVILLE, JJ., concur.

OPINION

ARTHUR, J.

There are no disputed facts in the case. The decision, therefore, on this appeal turns upon the application of the law to the undisputed facts.

Appellant, Sarah Anna Paup, was married to W. L. Paup in 1877, and remained his wife until he died, in November, 1920. This wife and husband lived in Shelby County, Iowa, during the last 25 years or more. Some time prior to July, 1908 (the record does not disclose the exact date), trouble arose between this husband and wife, and they lived apart until about July 17 or 18, 1908, when they resumed living together, and so continued, to the time of the death of W. L. Paup, on November 27, 1920. On July 17, 1908, they entered into an agreement in writing, whereby W. L. Paup agreed to transfer to Sarah Anna Paup certain real estate, of the value of $ 26,000, said contract being as follows:

"Now, on this 17th day of July, A. D. 1908, this agreement is entered into in duplicate by and between Sarah Anna Paup and Wm. Leslie Paup, wife and husband, to the following effect, to wit: The said W. Leslie Paup agrees to transfer to the said Sarah Anna Paup, $ 26,000.00 worth of property, the said property to be chosen by three disinterested parties, Ira B. Overholt to be one of the said parties to act for the said Wm. Leslie Paup, and whoever Sarah Anna Paup shall select be the second party, and these two so selected shall select the third, and when the said parties are so selected they shall make an inventory of the property of the said Wm. Leslie Paup and they shall hear the parties if they have anything to say as to the choosing of the said $ 26,000 worth of property and then they shall determine what part of the property shall make up the $ 26,000 aforesaid. The said Anna Paup agrees with the said Wm. Leslie Paup that she will accept the said $ 26,000 as a part of her share in his property and same shall be accepted as part payment of the same and in case she should hereafter either by suit or decease of the said Wm. Leslie Paup, receive the balance of her share she will credit upon the said share the $ 26,000 herein provided."

Pursuant to the provisions of the agreement that "three disinterested parties" should be selected to "determine what part of the property shall make up the $ 26,000 aforesaid," Ira B. Overholt, F. F. Wunder, and Frank Myatt were chosen to and did select property to the amount of $ 26,000, to be transferred to Sarah Anna Paup. On the following day, July 18, 1908, W. L. Paup conveyed to Sarah Anna Paup, by warranty deed, the property so selected, and the deed was placed of record. Included in the real estate so selected and transferred is the property involved in this action. The date of the instrument does not appear, but from the language of it, we assume that it was concurrent with the contract made July 17, 1908. The parties signed an agreement, as follows:

"In consideration of my wife, Sarah Anna Paup, returning to and living with me again as my wife, thereby condoning past offenses, I hereby promise and agree that I will, in every respect, conduct myself toward her as a true and loving husband, that I will faithfully and well provide and pay for all living expenses, as well as her own personal expense. That I will treat her, at all times, with consideration and kindness. I especially agree that I will not correspond with, show marked attention to, or have any relations with any other woman in any way inconsistent with or contrary to the duty I owe to Sarah Anna Paup, my wife, it being mutually understood that in case of any violation of this agreement, the said Sarah Anna Paup, my wife, may take any proceedings she may deem necessary to protect her interests, as though this agreement had never been made, except that the $ 26,000 which she is to receive by virtue of the annexed agreement is to be applied and credited by her on her share in my property as provided therein."

On the 20th day of July, 1908, Sarah Anna Paup deeded back to W. L. Paup all of the said property which W. L. Paup had transferred to her by the deed of July 18, 1908. Said deed, among other things, recited:

"The said W. L. Paup is to pay to said Sarah Anna Paup during the period of her natural life the sum of fifty dollars per month commencing on the first day of January, 1909, and to be paid on the first day of each month thereafter as long as the said Sarah Anna Paup shall live and at her death the trust hereby declared is to cease and the burden charged upon said property is released and satisfied. The trust hereby created is irrevocable, except by mutual agreement reduced to writing and signed by them and placed of record for any part or all of said property. It is further provided that in case of the death of W. L. Paup prior to the death of said Sarah Anna Paup that the property hereby conveyed shall revert to Sarah Anna Paup as her absolute property upon proper proof of death established in the probate court of this county and properly certified to the recorder of deeds of this county."

W. L. Paup died testate, appointing the Shelby County State Bank, of Harlan, Iowa, executor. The will was admitted to probate, and the bank duly qualified as executor. Soon after the death of W. L. Paup, Sarah Anna Paup asserted ownership and the right to possession of the property included in said deeds hereinbefore mentioned, and has been collecting the rental of said property. She also filed a claim against the estate for $ 6,500, based on the provisions in the deed wherein she was to be paid $ 50 a month, claiming that there has only been paid thereon the sum of $ 900.

In his will, W. L. Paup made devise to appellant as follows:

"I hereby give, bequeath and devise to my beloved wife, Sarah A. Paup, the house where we now reside in Harlan, Iowa, consisting of all grounds, buildings and appurtenances thereto belonging, and in addition thereto the one third in value of all other property of every kind and character that I may own at the time of my death and wheresoever situated, if she shall survive me, the same to be hers absolutely forever, the same to be taken by her in lieu of dower right, distributive share and any and all other claims she may have in or to my estate as my widow or surviving wife."

The widow, appellant, filed her written election to take her distributive share under the statute, rejecting the devise or bequest made to her by the will. The executor and numerous legatees under the will resisted appellant's claim to the property included in said deeds, claiming that the contract and deeds were void. On January 21, 1921, appellant instituted this action to quiet title in her to the property, making the executor, Shelby County State Bank, and all the beneficiaries under the will parties defendant, making some claim to the real estate adverse to the estate and title claimed by plaintiff. The court below dismissed plaintiff's petition, and quieted title in the real estate described in the petition in the estate of W. L. Paup, from which judgment this appeal is taken.

I. It is the position of appellant that the conveyance to her by her husband passed an absolute and valid title to her in the property in controversy; that the title to the property passed by said conveyance absolutely to appellant; and that it is entirely immaterial whether said conveyance was in pursuance of the contract made the day before the deed was executed. It is the position of appellees that said contract and deed made in pursuance thereof were absolutely void, because it was an attempt to deal with the dower interest of appellant in the property of her husband.

Appellant relies for reversal on the propositions that the deed to her by her husband, W. L. Paup, passed a valid title to her; that it was not a contract in regard to any dower interest or distributive share of the plaintiff in the lands of her husband, forbidden by Code Section 3154; but that it was a conveyance under Code Section 3157, in the nature of a gift from the husband to the wife. Counsel cite in support of their contentions, Harman v. Estate of Harman, 167 Iowa 106; In re Estate of Rule, 178 Iowa 184, 190, 159 N.W. 699. These...