The property in controversy is a farm of 240 acres, a leasehold interest for ten years, from April 1, 1877, in the south two-thirds of lot two, in block twenty-three, in the city of Des Moines, together with a brick livery barn and other improvements thereon, and a lot on corner of Tenth and Sycamore streets, west Des Moines. The plaintiff claims the farm and the leasehold interest and the improvements. thereon, under the same title. The lot on the corner of Tenth and Sycamore streets is claimed by the plaintiff under
I. As to the fa/rm and the leasehold interest.
In September, 1864, the plaintiff received from her uncle’s estate and from her brother $1,424.30. This money she gave to her husband, George W. Jones, with the understanding that he was to use it for her best interests, and account to her for it, with its interest and profits, whenever she desired. No writing was executed between the parties, and the plaintiff’s husband did not make any entry of the transaction upon his books. George W. Jones, who was a banker in the city of Des Moines, put this money in the banking business, and so employed it till he sold the bank some time during the same year. In the spring of 1865, George W. Jones invested this money, together with money of his own, in the Griffith block, and lot 11, block A, in east Des Moines, paying therefor $5,500. He talked with his wife about this investment, and she did not object to it. George W. Jones made considerable improvements upon the pi’operty, finishing up a building thereon and erecting additions thereto, and, in 1868, he sold a half interest therein to his brother John W. Jones, for $9,000. In January, 1870, these parties procured a loan on this property of $10,000, they and their wives joining in the execution of a mortgage thereon. This money was used in the erection of a brick hotel upon the property. It proved insufficient, and, in 1872, George W. Jones commenced negotiating for another loan of $8,000, which' was consummated in July, 1874. In order to procure this loan it became necessary,.-in addition to the hotel property, to mortgage two lots constituting a part of plaintiff’s homestead, and all the other unencumbered property of George W. Jones, with the exception of one business lot, afterward deeded to Christy in trust. The plaintiff was very reluctant to mortgage any portion of the homestead, and consented to do so only after her husband had agreed to secure her for the money obtained from her, .with its interest and profits.
• After the last mortgage was executed upon the hotel property, A. L. West, then doing a banking business in east Des Moines, loaned to George W. Jones $800. In 1876 West went out of business and was succeeded by Christy, to whom the demand against Jones was turned over. Afterward, Christy made various other loans to Jones, and Jones, as already stated, deeded to Christy a lot worth about $1,200, to be held in trust for the security of this debt. In June, 1877, Isaac Brandt went in partnership with Christy, and became interested in the claim against Jones. In October, 1877, the amount due from Jones being then $2,750, was divided into several small notes, which were indorsed by Christy & Brandt to their creditors. Jones, together with Christy and Brandt, was sued upon these notes and judgments were recovered. The property in controversy was levied upon, and was purchased by Brandt in satisfaction of the judgments.' Sheriffs deeds were executed to Brandt, under which he claims the property.
TOfefstatutes construed. 1. Did the money received by the plaintiff from her uncle and her brother, as to the creditors under whose claims the property in controversy "was sold, vest in the husband, so that it could not afford a consideration for the conveyance to the plaintiff of the property in question? The idea that, as between the plaintiff and her husband, a gift of the property was intended, is negatived by the testimony. Both the plaintiff and her husband testify that the money was placed in the hands of the plaintiff’s husband, to be used by him to the best advantage, and that he was to account for the money with interest or profits when required. Section 2199 of the Revision provides: “The personal property of the wife does not vest at once in the husband, but if left under his control
“Sec. 2202. A married woman may own in her own right real and personal property acquired by descent, gift, or purchase, and manage, sell, convey and devise the same by will, to the same extent and in the same manner that the husband can property belonging to him.”
As this money had not actually vested in the husband, under section 2499, except as to third persons acting in good faith, without knowledge of the real ownership, if indeed it had so vested as to them, see Doyle v. McGuire, 38 Iowa,, 410, it follows that this section can have no application to parties who became creditors after its repeal and the enactment of section 2202 of the Code of 1873. Even under the Revision, in Doyle v. McGuire, 38 Iowa, 410, where the wife loaned to the husband a large sum of money, without a note
In the case of Brigham et al. v. Fawcett, the Supreme Court of Michigan held that a husband actually indebted to the wife, may, if acting in good faith, convey to her property not exempt in payment of his indebtedness, and that other creditors can not complain that the indebtedness, or a part thereof, was at the time barred by the statute of limitations, had the debtor seen fit to assert such defense. See 4 N. W. Rep., 272.
The appellant cites and relies upon Watson v. Riskamire, 45 Iowa, 231, and Moore v. Orman, 56 Iowa, 39. In Watson v. Ris7camire, the alleged consideration for the conveyance was certain personal property consisting of horses, cows, sheep, a harness and wagon, and some household furniture, which the husband received from the wife’s guardian in 1847 and 1849. There was no agreement that he was buying the property of his wife, but it was agreed he was to take it and handle it as his own, and pay her interest on it. It was held that this did not constitute a consideration for the
The decision cannot be regarded as an authority in a case where the property was placed in the husband’s hands subsequently to the enactment of the statutes which we have referred to above. In Moore v. Orman, Mrs. Orman obtained from her brother’s and her father’s estate, five or six hundred dollars, which she placed in her husband’s possession in 1835. With this he purchased land and took the title in his own name. Under the law then in force the placing of the money in the husband’s possession and allowing him to use it was a surrender of it to him. Besides, it is distinctly stated in that case that the evidence does not show that either Orman or his wife, at the time the money was placed in her husband’s hands, expected to repay it, or made any provision for its repayment. The case is not at all applicable to the facts of the present case.
The case of Lutz v. Mitchell, 49 U. S., 580, relied upon by appellant, simply establishes a rule of evidence, and holds that “purchases of either real or personal property made by the wife of an insolvent debtor during coverture are justly regarded with suspicion, unless it clearly appears that the consideration was paid out of the separate estate * * *. In a contest between the creditors of the husband and the wife there is, and there should be, a presumption against her, which she must overcome by affirmative proof.”
In this case the appellant concedes that “the proof puts it beyond any controversy that Mrs. Jones, in the fall of 1867, received from her uncle’s estate, and her brother Ezra, about $1,420 in money, and gave the same to her husband, George W. Jones, with the understanding, as they say, that he was to invest the same for her, and she was to have it back, or its
2. estópese : uS^gvrtie’s money' 2. It is claimed, however, that the plaintiff, by allowing her husband to invest the money in the Griffith, block, which afterward became the hotel property, enabled her husband to obtain credit on the faith of this investment, and that she is now, as against creditors, estopped to assert her claim to the money. Upon this branch of the case appellant cites and relies upon Humes v. Scruggs, 94 U. S., 22; McGinnis v. Curry, 13 W. Va., 29; Hocket v. Bailey, 86 Ill., 74. In Hocket v. Bailey, it was held that if a wife allows her husband to use her capital as his own, to invest and reinvest the same in his own name, and thereby obtain credit on the faith of his being the owner of the same, she will not be allowed to interpose her claim to the property so acquired, to the injury of her husband’s creditors. Without determining as to the correctness of the doctrine announced in the cases above cited, we are of opinion that, under the facts of this case, there can be no estoppel. When the debt was contracted under which the property was sold to the defendant, the parties giving credit knew that the hotel property was incumbered with two mortgages, amounting to $18,000. When the hotel property was traded to Spofford for the Luse place, Spofford took the property subject to the mortgages. This property was afterward sold upon one of the mortgages, so that the creditors of Jones obtained the entire benefit of the hotel property. The Luse place was not saved out of the hotel property, but was acquired in addition. If then the creditors of George W. Jones relied upon his absolute ownership of the hotel property, they have acquired all that they counted upon, and hence, cannot
3. íBATOuance1: evi-'ey dence considered. 3. There being a valuable consideration for the conveyance in question, it is not constructively fraudulent orfraudulent in law. Before the conveyance can he'finpeached, actual fraud, or fraud in fact, upon the part oí both grantor and grantee, must be shown. Actual fraud cannot be presumed, but must be established, either by positive or circumstantial evidence. There is no positive proof that either the grantor or grantee in this case, intended to defraud the creditors of George W. Jones. George W. Jones testified as follows:
“The trade between me and Ool. Spofford, referred to in the exhibit to the amended replication, was made November 10, 1876. It was reported to me by his agent, and he gave it to me upon his word and honor, that Ool. Spofford was worth $150,000. When that trade was made, I heard Spofford estimated all the way from $70,000 to $150,000. I supposed that he was worth at least $75,000 or $100,000. * * . At time of trade for Yierson farm I had not the most remote idea that Spofford would not be able to pay out. I thought him entirely responsible. I had no intention of hindering, delaying or defrauding my creditors in deeding the property to my wife.” The plaintiff also testified: “I received that deed with no fraudulent intent and with no intention of hindering or delaying the collection of any debts against my husband.”
In our opinion the circumstances proved do not show the conveyance to have been actually fraudulent. At the time, of the conveyance of the Yierson farm to the plaintiff, the money which she placed in the hands of her husband amounted, at eight per cent simple interest, to $2,934. The interest
4 judicial cRifser^notice' 4. Appellants place great stress upon the fact that the plaintiff, in her amended reply, alleges that upon the conveyance ^e hotel property for the Luse place she acquired and held an equity in the Luse farm, which was subsequently settled by the conveyance to her of the Yierson farm. It is said that the existence of an equity in the hotel property and the Luse place is inconsistent with the existence of a debt in favor of plaintiff against her husband. If this should be conceded, we are unable to see how it would aid the appellant’s case. Before the judgment under which the defendant claims had been recovered, the legal title had become vested in the plaintiff, and her equitable estate, if she had one, had become a legal estate. The defendant purchased at the sheriff’s sale, with notice, at least constructive, of that fact. A purchaser at a sheriff’s sale, without notice, is protected against latent equities, but not a mere creditor. See Gower v. Doheney, 33 Iowa, 36; Holloway v. Platner, 20 Id., 121; Bell v. Evans, 10 Id., 353; Welton v. Tizzard, 15 Id., 495.
6__ estoppel 5. The property in controversy was levied upon under execution and advertised for sale on the 7th day of January, 1879. On the 4th day of January, 1879, this plaintiff filed petitions in the Circuit Court male
First. Appellant insists that the plaintiff, having stood by and permitted the defendant to purchase the property, when she might have prevented the sale thereof by injunction, has waived and abandoned all claim to the property. But the plaintiff’s deed was of record, and Brandt had, at least, constructive notice thereof. The plaintiff was under no legal nor equitable obligation to protect him by preventing the sale.
e. abatedSioy oíanother action. Second. It is insisted that, at all events, the pendency of that suit was an insuperable objection to the bringing of this action on the 19th of March, 1879. ~We are unable to see, however, how the pendency of an ac-^on aga^ns^ tpg sheriff, and the judgment plaintiffs, could be an insuperable barrier to the commencement of an action against the defendant, who, notwithstanding the pendency of the action, had become a purchaser of the prop: erty. In our opinion the court did not err in quieting the plaintiff’s title to the farm and livery barn and lease in question.
II. As to the lot on the corner of Tenth and Sycamore streets, west Fes Moi/nes.
7. homeceedsDo?miability for debts. The plaintiff and her husband owned and occupied a homestead in east Des Moines. In May, 1878, this homestead was. exchanged with McLain for a new homestead in west Des Moines, which was deeded to . . the plaintiff. In addition to this new homestead McLain gave in exchange for the old homestead $300
Affirmed.