Smith v. Utesch

• Decision Date: 20 May 1892
• Parties: SMITH v. UTESCH ET UX.
• Court: Iowa Supreme Court

85 Iowa 381

52 N.W. 343

SMITH

v.UTESCH ET UX.

Supreme Court of Iowa.

May 20, 1892.

Appeal from district court, Plymouth county; SCOTT M. LADD, Judge.

Action in equity in the nature of a creditors' bill, by which the plaintiff seeks to subject certain land and personal property to the payment of a judgment against the defendant August Utesch. The defendants are husband and wife. The title to the land was formerly in the husband, and he made a conveyance to his wife. It is claimed by the plaintiff that this conveyance was without consideration, and fraudulent and void as to the creditors of the husband. The judgment held by the plaintiff was founded on a debt which was contracted before the land was owned by the defendants. There was a full trial on the merits, and a decree for the plaintiff. Defendants appeal.Struble, Rishel & Hart, for appellants.

Argo & McDuffie, for appellee.

ROTHROCK, J.

There is no question as to the validity of the judgment held by the plaintiff against August Utesch. The indebtedness upon which it is founded was contracted in the year 1876. The land in controversy is a tract of 160 acres. It was purchased by August Utesch of one Hamlin, October 11, 1883. The contract price was $2,000; $100 was paid in cash, $400 was to be paid October 25, 1883, and $500 January 25, 1884. These deferred payments drew interest at the rate of 8 per cent. per annum. These payments were made, and on the 28th day of January, 1884, Hamlin conveyed the land to August Utesch, subject to a mortgage of $1,000 thereon, which Utesch agreed to pay. On the 8th day of December, 1885, August Utesch conveyed the land to Minnie Utesch, subject to the said mortgage of $1,000. The claim of the plaintiff is that the land was at all times owned by August Utesch, and that the conveyance was made to his wife to prevent the collection of plaintiff's judgment. The defendants claim that the land was purchased with the money of the wife, and that the mortgage which was assumed as part of the purchase money has been since paid with her money. There was a large number of witnesses examined on the hearing. We do not purpose to set out the testimony of the witnesses in detail. The following facts are shown by the evidence without conflict, or are so clearly proven that they may be accepted as true: The defendants are natives of Germany. August Utesch came to this country in the year 1871, and worked as a farm laborer near Sterling, Ill., for a time, and returned to Germany, and married Minnie Peterson, and returned to Sterling with her in April, 1873. The defendants went to housekeeping, and the husband worked at farm work by the month for a time. Then they leased a farm, and cultivated it as tenants. In 1876, August Utesch bought a farm of one Fahey. He worked the farm for two years, and, being unable to pay for it, he gave it up, and in 1878 he removed to Benton county, in this state, and rented a farm of one Smith for one year. Then he leased a farm of one Gemning, and farmed it until 1885, when he removed to Plymouth county, having before his removal bought the land in controversy. When he removed to Plymouth county the land in controversy was wild, uncultivated prairie. He rented land from other parties, and cultivated it until his own land was improved.

During all this time, and up to the time of the conveyance of the land in controversy to Minnie Utesch, all of the renting of farms, payment of money, sale of stock, in short all the business for the family, was transacted by August Utesch and in his name. This is a strong circumstance tending to show that the business carried on was that of the husband, and not that of the wife. It is true this evidence is not conclusive, and it is claimed in behalf of appellant that it should have no weight in this case, because the husband and wife testified that all the business was in fact her business, and that her husband was her mere agent. It is true that there are many cases where the husband acts as the mere agent of his wife in the purchase and sale of property, and no agency is disclosed, and the public suppose that the husband is the principal. But the business, as shown in this case, involves more than the ordinary business done by a husband in disposing of produce and stock raised on the farm of his wife. It involves the purchase of two farms, and the renting of several others, and all done in the name of the husband.

There is a large amount of evidence on the question as to how...