Sawyer v. Briggart

• Decision Date: 07 October 1901
• Citation: 114 Iowa 489,87 N.W. 426
• Parties: SAWYER v. BRIGGART.
• Court: Iowa Supreme Court

114 Iowa 489

87 N.W. 426

SAWYER

v.BRIGGART.

Supreme Court of Iowa.

Oct. 7, 1901.

Appeal from district court, Jones county; H. M. Remley, Judge.

Suit for assignment of dower. From decree as prayed, defendant appeals. Affirmed.B. H. Miller and J. S. Stacy, for appellant.

Jamison & Smyth, for appellee.

LADD, J.

In 1889 the plaintiff and her husband, Samuel Sawyer, entered into a written agreement of separation, under which the husband conveyed to her certain property in Olin, and retained the 50 acres of land in controversy, divided the personal property, and each constituted the other his attorney in fact with authority to join in his name and stead in the conveyance of all the other property above mentioned. Afterwards Samuel Sawyer executed a deed of the 50 acres mentioned to defendant, attaching thereto his own signature and that of his wife, by virtue of the alleged power of attorney. He died April 19, 1896, and thereafter plaintiff claimed her distributive share in the personal property left by him, and has received a portion thereof. She took possession of the real estate in Olin upon the execution of the agreement, and has since held it. Very evidently the subject of the power of attorney included in the contract was the interest of each in the land of the other. It attempted to authorize the husband to convey the wife's contingent right in this land. But the statute absolutely forbids the interest of either in the property owned by the other to become the subject of any contract whatever between them. Section 3154, Code; Garner v. Fry, 104 Iowa, 515, 73 N. W. 1079;Miller v. Miller, 104 Iowa, 186, 73 N. W. 484;Linton v. Crossby, 54 Iowa, 478, 6 N. W. 726. Samuel Sawyer then had no authority to sign plaintiff's name to the deed running to defendant. Nor can the law prohibiting such a contract be evaded by afterwards ratifying acts forbidden. Ratification is in effect a contract, and, as neither could enter into any agreement concerning this subject-matter prior to the dissolution of the marriage relation, ratification, if proven, would be quite as obnoxious to the policy of the law as the original arrangement. As precisely in point, see Shane v. McNeill, 76 Iowa, 461, 41 N. W. 166. Nor is the plaintiff estopped by anything done prior to her husband's death. The defendant does not appear to have been misled in any way. By the instrument containing the alleged power of attorney under which the deed was signed he was fully advised of its illegal character, and with the land took his chance on the ripening of the wife's inchoate interest into an undivided third in fee simple. See Shane v. McNeill, supra. Wronkow v. Oakley, 133 N. Y. 505, 31 N. E. 521, 16 L. R. A. 209, 28 Am. St. Rep. 661, is not in point, owing to difference in statutes. In Dunlap v. Thomas, 69 Iowa, 358, 28 N. W. 637, the...