Stidger v. Evans

• Decision Date: 09 June 1884
• Citation: 64 Iowa 91,19 N.W. 850
• Parties: STIDGER v. EVANS.
• Court: Iowa Supreme Court

64 Iowa 91

19 N.W. 850

STIDGER

v.EVANS.

Supreme Court of Iowa.

Filed June 9, 1884.

Appeal from Montgomery circuit court.

Action in equity. The plaintiff avers that she is the widow of W. C. Stidger, who died intestate in 1880; that during her marriage to him he was seized in fee-simple of certain real estate in the city of Red Oak Junction; that she has never made any relinquishment of her rights in said property; and that the same has not been sold on execution or judicial sale. She prays that her share may be set out to her. The defendant admits that the plaintiff's husband was at one time the owner of the property, but denies that it has not been sold on judicial sale. He avers that the plaintiff's husband made a general assignment to one Hillis for the benefit of his creditors under the statute providing for such assignment, and that Hillis, in the discharge of his duties as assignee under the statute, sold and conveyed the property in question to the defendant, and that by such sale the plaintiff's rights became divested. There was a decree for the defendant. The plaintiff appeals.W. S. Strawn, for appellant.

McPherson & Murphy and C. E. Richards, for appellee.

ADAMS, J.

The fact of the assignment, and of the sale and conveyance by the assignee to the defendant, is shown by an agreed statement. The question presented is as to whether the plaintiff's rights became divested by the assignee's sale and conveyance. The assignment was made in August, 1873. Under the law then and ever since in force, the surviving wife is entitled to “one-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage which have not been sold on execution or any other judicial sale, and to which the wife has made no relinquishment of her right.” Code, § 2440. If the assignee's deed divested the plaintiff's right, it is because the sale made by him was a judicial sale within the meaning of the statute. The plaintiff insists that it was not such. Her position is that a sale can properly be denominated a judicial sale only when it is made under the direction or is subject to the approval of a court or judge, and she insists that this sale was not.

It is not claimed by the defendant that the sale was made under the express direction of a court or judge, or was expressly subject to approval by a court or judge; but his position is, as we understand it, that we may assume that it was made under judicial supervision. The statute provides that the assignee shall file with the clerk of the court a full and true inventory, and shall give a bond to the clerk, with sureties to be approved by him, before he can proceed to perform any duty necessary to carry into effect the intention of the assignment. Code, § 2118. The statute also provides that “the assignee shall at all times be subject to the order and supervision of the court or judge.” Code, § 2123. Whether these provisions, in the absence of any adjudication,...