Wallace v. Wallace

• Decision Date: 11 February 1908
• Citation: 114 N.W. 913,137 Iowa 169
• Parties: WALLACE v. WALLACE ET AL.
• Court: Iowa Supreme Court

137 Iowa 169

114 N.W. 913

WALLACE

v.WALLACE ET AL.

Supreme Court of Iowa.

Feb. 11, 1908.

Appeal from District Court, Lucas County; M. A. Roberts, Judge.

Action in equity brought by plaintiff, as the widow of Thomas D. Wallace, who died on March 30, 1906, to set aside a deed of said Thomas D. Wallace to his children by a former marriage, which deed, as plaintiff alleges, was executed and recorded within two days prior to the marriage of said Thomas D. Wallace to plaintiff, without plaintiff's knowledge and without consideration, and with the fraudulent intent and purpose of preventing plaintiff from having and obtaining her dower interest in the real estate which said deed purported to convey. After a trial on the merits there was a decree for plaintiff, awarding her a dower interest in the land in controversy, and the defendants, who are the grantees in the deed, and their wives and husbands respectively, or their heirs, appeal. Affirmed.Stuart & Stuart and C. E. Hunn, for appellants.

Penick & Anderson, for appellee.

McCLAIN, J.

The evidence shows that Thomas D. Wallace was, prior to March, 1890, the owner of 200 acres of land which was described in a deed to his children by a former marriage executed on the 20th of that month and filed for record on the 22d, the marriage of plaintiff taking place later in the same day. The deed recited a consideration of $50, and contained a reservation to the grantor of the use and control of the land during his natural life. The evidence shows also that plaintiff believed at the time of the marriage that her husband was still the owner of the land and that he remained such owner until his death. Shortly after his death she discovered the existence of the deed in question, and brought this action to set it aside so far as it affected the interest which she would have had in the property as the surviving widow had no such deed been executed.

1. It is well settled that a secret conveyance in contemplation of marriage is fraudulent as to the spouse, the intent to deprive her of the marital rights which she would otherwise have acquired being presumed from the circumstances. Beechley v. Beechley (Iowa) 108 N. W. 762, 9 L. R. A. (N. S.) 955. It is conceded that this deed was executedby Thomas D. Wallace in contemplation of his marriage to plaintiff, and without actual knowledge thereof on her part until long afterward. Counsel for appellants contend that a presumption of fraud does not arise in such cases where the conveyance is to children of a prior marriage, in good faith and without fraud, and rely upon Hamilton v. Smith, 57 Iowa, 15, 10 N. W. 276, 42 Am. Rep. 39, and the cases therein cited. But in the Beechley Case, supra, the prior decisions of this court were reviewed, and it was said: “In some of the earlier cases it was thought that a distinction should be made between silence or failure to disclose the true situation, and actual misrepresentation, as to property. The later decisions, however, and the weight of authority in this country, at least, hold that the ignorance of the spouse of a settlement or conveyance pending a treaty of marriage is fatal thereto, though no actual misrepresentations or deceit appear.” We are still content with this statement of the law, and are satisfied that plaintiff is entitled to have the deed set aside, unless her rights have become barred by failure to bring action within the statutory period, or she has estopped herself by her conduct from asserting her rights as against the defendants.

2. It is contended for appellants that the evidence shows plaintiff to have had knowledge of the deed during the existence of the marriage and more than five years prior to the bringing of her action. Under the provisions of the deed the husband continued to enjoy the...