Whitcomb v. Whitcomb
| Decision Date | 23 October 1879 |
| Citation | 2 N.W. 1000,52 Iowa 715 |
| Parties | WHITCOMB v. WHITCOMB ET AL |
| Court | Iowa Supreme Court |
Appeal from Bremer District Court.
THE plaintiff and defendant Abel Whitcomb were married in 1855. In 1872 said defendant commenced an action to obtain a divorce. It was duly granted.
In November, 1873, the plaintiff commenced an action to set aside the decree of divorce, and asked she be allowed temporary and permanent alimony. The divorce was set aside and a judgment rendered against Abel Whitcomb for $ 750 as temporary and $ 1,500 as permanent alimony, and also for costs. This judgment was affirmed in this court. See 46 Iowa 437. This action was instituted to set aside a certain quit-claim deed made by the plaintiff to said Abel, because fraudulently obtained, and to set aside a conveyance of certain real estate made by said Abel to the defendant Mores and to subject the same to the payment of said judgment on the alleged ground that it was made for the purpose of defrauding the plaintiff. It was also sought to subject the homestead of said Abel to said judgment.
The conveyances were set aside, and the defendant Mores alone appeals from that portion of the decree. The relief asked as to the homestead was refused, and therefrom the plaintiff appeals.
AFFIRMED.
G. C Wright, for Mores.
Starr, Harrison & Danforth, for plaintiff.
A. F. Brown and A. T. Cole, for Abel Whitcomb.
I.
It is too late to inquire whether the judgment was properly rendered, or whether the plaintiff was entitled to recover alimony in the action brought to set aside the decree of divorce. Such questions have been heretofore settled. The plaintiff has a right to the use of the same remedies for the enforcement of the judgment as if the parties thereto were strangers to each other, and it had been rendered on a promissory note.
II. The defendant Whitcomb obtained the quit-claim deed from the plaintiff in November, 1871, by the commission of a willful and deliberate fraud. It is unnecessary to refer to the evidence at length bearing upon this question, because Whitcomb has not appealed, and the decree below has conclusively settled this proposition. We only do so for the purpose of saying that we are satisfied Mores had knowledge of this fraud, and aided and abetted therein. There is much evidence pointing in this direction, but that of Slimmer and Wood, the truth of which we have no reason to doubt, closes the door as to any doubt there otherwise might have been.
We start, therefore, in the investigation of the main question in this case, with such fraud and knowledge established. In the light of subsequent events there is no doubt such fraud was the preliminary step in the divorce proceeding, which was successfully accomplished with the further knowledge and aid of Mores.
In November, 1873, the action to set aside the divorce and for alimony was commenced. The notice in said action was served on the 3d day of said month. On the preceding 16th day of August Whitcomb conveyed the land in controversy to Mores. At least the deed and acknowledgment is dated then, and Mr. Wright, the notary, testifies that the date is correct and the deed was then delivered. These dates and the evidence of Wright are all that we can rely on with any degree of confidence, as both Mores and Whitcomb are uncertain when or where it was executed. Indeed a stronger expression than this could be used. They are mistaken who drafted the deed, or have purposely stated an untruth. Their testimony on this point is confused, contradictory and unreliable.
The deed was not recorded until November the 8th, five days after the notice in the action to set aside the divorce was served. No satisfactory explanation is given why the deed was not recorded earlier. Whitcomb, at least, had knowledge, at the time the deed was executed, that the probability was the plaintiff would take some steps to obtain her legal rights. On the same day the deed was recorded Mores loaned Whitcomb $ 800, to secure which a chattel mortgage on personal property was executed, and was placed on record the same day. Under these instruments Mores held the legal title to, and had a lien on, all of Whitcomb's visible property except the homestead. Mores claims to have given Whitcomb a check on a bank for the $ 800 the mortgage was given to secure. There is evidence tending strongly to show that while this may be true in form, it is substantially false. Mores drew a check for that amount about the time the mortgage was executed. It was not presented for payment until the 11th day of December following, when it was paid. On the succeeding day the same amount of money was credited to Moons. Who the check was payable to, who drew the money thereon, or who made the deposit, the books of the bank do not disclose. No explanation of this transaction is given by Mr. Mores. We cannot but think one was demanded. Because of its absence legitimate inferences may be drawn, prejudicial to Mr. Mores and the bona fides of the transaction.
It is singular, and out of the usual course of business, the check should have been held so long, and that the same amount should be deposited the next day after it was paid. We are not impressed with the thought that Mr. Mores' transactions with the bank, or others, were so numerous that all recollection of this transaction should have passed from him. A denial that this check was the one given Whitcomb, and that the loss of books or memoranda prevented him from saying with certainty to whom it was given, would have been better than nothing. The...
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