Everitt v. Everitt

32 N.W. 273, 71 Iowa 221

• Court: Supreme Court of Iowa
• Decided: March 10, 1887
• Status: Published

Opinion

Reed, J.

Before George M. Everitt conveyed the land to Young, he was indebted to him in an amount fully equal to two-thirds of the value of the property. The greater part of this indebtedness was secured by mortgage on the property, butaportion of it was not secured. The evidence shows, without any doubt, we think, that the conveyance was given in satisfaction of the indebtedness, and was not intended asa mortgage. An understanding was subsequently entered into, however, between the parties, by which it was agreed that Young would reconvey the property to Everitt upon the payment of the amount of the indebtedness. In pursuance of this understanding, Everitt made a number of payments to Young. The latter also received some rents for the premises. He also received $150 from a raili’oad company for a right of way over the land; and for these amounts he gave-Everitt credit. When the cozzveyance to defendant was znade, Young had received from all these sources an amount equal to the original indebtedness, with inteiest thereon. This conveyance was made to defendant by the direction of his father, •such direction being given at the time of the execution of the conveyance. Soon after the agreement between Young and Everitt was entered into, the latter took possession of the land, and erected a dwelling-house and other buildings thereon. He moved into this dwelling-house, and continued to live there with his family until his death, which occurred soon after the conveyance of the land by Young to defendant.

Counsel for defendant contended that the facts of the case brought it within the holding in Beck v. Beck, 64 Iowa, 155. But there is a clear distinction between the two cases. In that case the husband purchased real estate which he caused to be conveyed to his son. He paid for the property with money which he had derived from the .sale of other real estate, in which his wife had had a dower interest, but which she had relinquished at the time of the sale. He purchased the property for his son-, and paid for it at the time of the purchase, and he had no intention of taking or acquiring any interest in it himself; and we held that the wife was not endowed of the laud. But in the present case the contract between Everitt and Young was entered into by the-former in his own interest, and for his own benefit. He contracted for the purchase of the land, not for his son, but for himself. The interest and right which accrued in the land under the contract accrued in his favor. When he procured the conveyance to be made to his son, he simply caused those rights to be transferred to him. In the Beole Case the interests in the real estate acquired by the purchase accrued ' at once to the son. In this case they accrued to the father and were subsequently transferred to the son. But, if the interest so acquired was of such a nature as to give the wife a dower right in the property, it is clear that she Would not be divested of that right by the conveyance to the son. The statute (Code, § 2440) provides that “ one-third in value of the legal or equitable estates in real property jwssessed 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, shall be set apart as her property in fee-simple if she survive him.” '

Under tliis provision, the question whether plaintiff has a dower right in the property depends upon whether the husband acquired a legal or equitable estate therein under the agreement with Young. The contract was by parol, but Everitt took possession under it, and made valuable improvements upon the property, and he continued in possession up to the time of his death. At the time he directed the conveyance to be made to defendant, the full amount of 'the consideration had been paid. At least, that is the fair inference from the evidence. That he was the equitable owner of the property at that time cannot be doubted. All that was required to be done in order to vest him with absolute ownership was the passing of the naked legal title to him; and that he was entitled to have done.

It 'is entirely clear that plaintiff is entitled, under the statute, to have one-third in value of the property set off to her.

Affirmed.