I. From the pleadings and evidence the following fact® are established: On and prior to September 25,1877, plaintiff was the wife of Charles M. Sherod, and said parties lived together as husband and wife, in Wayne county, Iowa, on the land in controversy. As the fruit of said marriage, there were born to plaintiff and her said husband three children, who have always lived with the mother. On August 16,1876, said Charles M. Sherod conveyed by warranty deed, to Amos C. Sherod, the land in controversy. Said deed purported to be signed by the plaintiff, but did not purport to be acknowledged by her. In fact, she never signed said deed, nor did she authorize any one to sign it for her. February 8,1877, Amos C. Sherod (unmarried) executed and delivered to C. M. Sherod a warranty deed to said land. Prior to executing said last-mentioned deed, and on January 1, 3877, Amo® C. Sherod (unmarried) executed a note to John M. Ewell for one thousand dollars, due January 1,1882, and secured by a mortgage on the same land. September 25,' 1877, Charles M. Sherod left hi® home, wife, and family, without cause, and has not been heal’d from by the wife or children since August, 1878. In 1879 said John M. Ewell procured a judgment and a decree of foreclosure of his mortgage on the land in controversy, and on March 13,1880, received a sheriff’s deed to the same on a sale had on an execution,
1 II. Claim is made that the evidence does not warrant the conclusion that C. M. Sherod is dead. The rule, as laid down in 1 Greenleaf, Evidence (15th ed.), section 41, is: “But, after the lapse of seven years, without intelligence concerning the person, the presump'tion of life ceases, and the burden of proof is devolved on the other party.” So, in 1 Jones, Evidence, section 57, it is said: “If a man leaves his home, and goes to parts unknown, and remains unheard from for the space of seven years, the law authorizes to those that remain the presumption of fact that he is dead.” “A presumption of the death of a party does not arise until he has been absent, without intelligence concerning him, for the period of seven years.” State v. Henke, 58 Iowa, 458; Tisdale v. Insurance Co., 26 Iowa, 176; Seeds v. Grand Lodge, 93 Iowa, 175. A
2 III. It appears without conflict that plaintiff never signed, nor authorized her name to be signed to, the deed. The pretended signature of her name was a forgery. The pretended signature was not acknowledged. Whether or not plaintiff would be estopped by her silence, after knowing of the pretended signature of her name to the deed, we need not consider. It is sufficient to say that no estoppel is pleaded.
3 IY. The dower right of the plaintiff was not affected by the sale under the Ewell mortgage. She was not made a party to that action, and hence could not be concluded by the decree. Not having, in fact, signed the deed, and there being no pretense that she had acknowledged it, it was not properly or lawfully recorded, and it therefore imparted no notice, and no one had a right to rely upon the fact that the plaintiff had apparently signed the deed. McClain’s Code, section 3113; Willard v. Cramer, 36 Iowa, 22; Greenwood v. Jenswold, 69 Iowa, 53.
4 Y. Finally, it is said that the execution sale to Selby bars the plaintiff’s right to any interest in the land. This claim is based upon the provisions of McClain’s Code, section 3644, which reads: “One-third in value of all the legal or equitable estates in real property, possessed 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