Johnston v. McPherran

47 N.W. 60, 81 Iowa 230

• Court: Supreme Court of Iowa
• Decided: October 21, 1890
• Status: Published

Opinion

Q-ivew, J.

1. aprbai,: rec-mentary evl-dence‘ I. The appellee moves to strike parts of appellants’ abstract, wherein certain documents and depositions are set out as having been offered in evidence, on the grounds that the same are not sufficiently identified. The transcript of the reporter’s notes shows that documents were offered and identified by exhibit marks, and that two depositions of John A. McPherran were read in evidence. Attached to this transcript are documents bearing exhibit marks identical with those called for in the transcript, and two depositions of John A. McPherran entitled as in'these cases, and filed in the office of the clerk. The transcript also contains a copy of the judge’s certificate to the original report, in shorthand, certifying “that the same, together with the documentary evidence therein referred to, contains all the evidence offered.” Such identification was held sufficient in Way v. Council, 76 Iowa, 741. The documents and depositions set out are identical with those in the transcript, and there is no reason to doubt that they are the same that were offered in evidence. Appellee’s motion to strike is overruled.

2. Rbaudoteht otreafestate: homestead, II. The facts relating to the question of homestead are these: September 10, 1870, A. S. McPherran, then unmarried, was the owner of the lands in question. At that time, and in consequence of some trouble, the nature of which does not appear, he deeded the lands to his brother, John A., without consideration, and with the understanding that John A. would reconvey whenever requested. At the same time John A. McPherran executed a power of attorney to A. S. McPherran, authorizing him to sell, lease, mortgage, and otherwise fully control the land. The deed was recorded September 29, 1870, and the power of attorney in May, 1872. In March, 1871, appellants intermarried, and soon thereafter commenced improving the quarter in section thirty-one by erecting a dwelling on the northwest forty thereof, into which they moved. In June, 1872, A. S. McPherran, by virtue of his power of attorney from J. A. McPherran, executed the notes and mortgage to the iEtna Insurance Company, and on December 13, 1876, by virtue of the same authority, executed the mortgage to appellee. Some time in 1874 or 1875, John A. McPherran executed a quitclaim deed to A. S. McPherran for said northwest quarter of section 31, which deed was never placed of record, nor disclosed to the public, nor to the appellee. On December 15, 1876, appellants joined in a deed for the two quarter sections to John A. McPherran to correct the former deed from A. S. McPherran to John A.' McPherran. This deed was also duly recorded.

Appellants’ contention is that, at the time of their marriage, A. S. MePherran had an interest in these lands; that by the marriage the rights of his wife in that interest became vested, and that she did not join in any conveyance thereof at or before the execution of these mortgages. The appellants rely upon Cotton v. Wood, 25 Iowa, 46; Chase v. Abbott, 20 Iowa, 158, and Stinson v. Richardson, 44 Iowa, 375. The facts in this case being entirely different, those cited are not in point. In those cases there was an interest to vest .in the wife, but in this we think the husband had no interest in the lands in question at the time of their marriage that the law would enforce. He had conveyed the lands before marriage by deed absolute omits face, but without consideration, and because of some trouble that had come upon him. We cannot conceive of any trouble that would cause such a conveyance, but a fear of creditors, and if the conveyance was made to defraud creditors, as we conclude it was, then, as to John A., the appellant, A. S., was without remedy, as the law would not permit him to benefit by his own wrong, by compelling a reconveyance. It follows, therefore, that at the time of their marriage A. S. McPherran had no interest in these lands which the law would enforce, and, therefore, no interest to become rested in his wife.

Another reason why appellants’ claim to homestead should not be sustained is that, on December 15, 1876, they joined in a deed' to John A. McPherran, to correct and perfect the deed theretofore executed to him by A. S. McPherran. True, this correction deed was not executed until two days after the last mortgage, but it was executed solely to correct the former deed, and by signing it Mrs. McPherran signed the same joint instrument with her husband, by which she concurred in the former conveyance.

It is contended that, if appellants ever had a homestead in this land, they had abandoned it. Being clearly of the opinion that appellants have no homestead rights in the land, for the reasons already stated, we need not determine whether the facts proven would constitute an abandonment or not.

III. The notes and mortgage executed to appellee were given to secure a loan negotiated by Ebersole & Willett, as attorneys for John A. and A. S. McPherran. The mortgage being junior to that to the 2Etna Insurance Company, and said attorneys having notes in their hands belonging to A. S. McPherran, it was agreed that they should collect said notes, and apply the proceeds, less their charges upon the mortgage debt, to appellee. Appellants contend that the notes were pledged as collateral security for the mortgage debt, and that the full amount realized thereon, less collection fees, should be applied thereon. There were two separate accountings and settlements between A. S. McPherran, appellee and the attorneys, of the amounts collected, and the amount to be credited on the mortgage debt agreed upon and credited.

A further discussion of the 'details of this transaction is unnecessary. It is sufficient to say, that we have examined the record with care, and are satisfied that the amounts found by the circuit court are correct. Our conclusion is that the decree of the circuit court should be AEEIRMED.