Samuel F. Hays was at one time the owner of the property in dispute. In March of the year 1868, for the consideration of $1,000, he conveyed the same by warranty deed to his wife, Elizabeth Hays. Elizabeth was the sister of defendant, Marsh. She died in the spring of 1895, without issue, her husband, the plaintiff herein, surviving. He claims that he is entitled to the real estate of which she died seised because of a decree in a partition suit awarding the land to him, that he is entitled to it by adverse possession, and that the decree awarding the same to defendant should not have been rendered because of defendant’s laches. He further claims that in any event he should be awarded a one-sixth interest in the land as an heir of his wife. Another claim made by him is that his wife held the title to the land in trust for him, and that he is entitled to the whole thereof as the beneficial owner. Defendant bases his title on the fact that his sister, plaintiff’s wife, owned the land at the time of her death; that plaintiff, the husband, elected to take a homestead in the land in lieu of distributive share; and that he is entitled to have the fee-simple title decreed to be in *83him. The decree of the trial court gave plaintiff a life estate in the property, but decreed the fee title to be in the defendant.
i. trusts: when shown by paio1' Plaintiff must fail on his claim that he is the beneficial owner of the property, and that his wife held the title in trust for him, for the reason that he cannot establish such a trust hy parol. The deed recites a valuable consideration as in hand paid by the wife, and plaintiff cannot establish a trust in the wife by showing that there was no consideration in fact paid for the deed. He cannot, of course, show an express trust by parol. He intimates that the conveyance was made to the wife i?or the purpose of defrauding his creditors. This is denied, and we think that he has failed to establish his claim. But, if he had, it would not kvail him, for the reason that a conveyance to the wife under such circumstances is good as between the parties, and the plaintiff cannot establish a trust by showing his own perfidy and dishonor.
2’ NEss^dlN requiredtitie. It appears that after he made the deed to his wife, which conveyed an undivided one-sixth interest in certain lands, an action of partition was brought by some of the co-owners against plaintiff herein and others, and that in that action plaintiff was awarded the land in controversy. The wife, Elizabeth, who theu owned the land under her warranty deed, was not made a party to the proceedings, nor did she appear therein. She was not, of course, bound by the decree. Shortly after the decree was entered, plaintiff and his wife, Elizabeth, moved upon the property, improved and cultivated it, and it was their homestead at the time of the death of the wife, These improvements were made by the husband and wife jointly. Plaintiff claims-under the decree of partition, and argues that, if he is not entitled to the land thereunder, he is entitled to it by reason of adverse possession in his wife for more than ten years. It is manifest that neither Elizabeth Hays nor the defendant, as her successor in interest,' is bound by a decree to which she was not made a party. We should *84not be expected to cite authorities on so plain a proposition. Even if it could be said that plaintiff obtained title to the land under the decree, the title inured to the benefit of his wife under her warranty deed. See Code, section 2915, and annotations thereto.
3 parol partition of land. The partition decree was not binding on Elizabeth ITays, but her possession, with her husband, of the land allotted to the husband by that decree, with the implied consent anctapproval .of the other co-tenants, amounted to ieas^ a parol partition of the lands, and gave her this share in severalty. Indeed, these parties are in no position to challenge .the effect .of this partition suit, in so far as it amounts to a setting aside of a specific part thereof to Elizabeth Hays, although this was done in the name of the husband. Therefore occupancy of a specific portion under the facts disclosed in this case amounted to a voluntary partition of the lands. That there may be a parol voluntary partition of lands owned in common, see Ereeman on Co-Tenancy (2d Ed.) sections 398-408.
4. title by adsk>nfpre-ses" sumption. Plaintiff contends, however, that he is entitled to bave the title decreed to be in him by reason of holding possession thereof under the partition decree adversely to his wife for more ten years. The testimony fails in many respects to establish his claim. It is doubtful if husband may, under- any circumstances, hold adversely to his wife, especially where, as here, the property is a homestead. We can hardly conceive of a case where this could be so. In Root v. Schaffner, 39 Iowa, 375, it is said neither the husband nor the wife can rely on the mere fact of possession to prove acquisition of title from the other. • The possession of husband and wife is the possession of the one in whom is the legal title. At least, this is the legal presumption. The testimony entirely fails to negative this presumption, and it is manifest that plaintiff does not have title by adverse possession.
*855. -inches. *84There was no laches on the part of Elizabeth Hays because she had no occasion before her death to bring an action *85against ber husband. She was enjoying the fruits of the property, and plaintiff was not disputing Her title in any manner. Little claim is made that defendant did not bring his action in time. Indeed, he did not bring any action, and was not compelled to until he knew that plaintiff was denying his title. This plaintiff did not do until he commenced this action. Defendant thereupon filed his counterclaim. This was timely.
6. interest of heirs' After the death of the wife plaintiff elected to take a homestead right to the land, instead of a distributive share. This,' of course, was a life estate only, and it was fully recognized and protected by the decree of the trial court. But it also appears that, as Elizabeth died without issue, plaintiff was also entitled to a one-sixth thereof in fee as heir of his wife under Code, section 3379. Wilcke v. Wilcke, 102 Iowa, 173, and cases cited. The election to take homestead, or even the allotment of a distributive share, will not affect this interest. The cases cited by appellee to this point do not support his contention.
But appellee says this point was not presented to the lower court. We think it must have been, for it was incumbent on the court to fix the interest and title of each of the parties to this controversy. At any rate, defendant should not be awarded more on his counterclaim than he shows himself entitled to. Under the pleadings and the evidence lie was entitled» to five-sixths of the property in fee simple, subject to plaintiff’s life estate. The trial court gave him the whole. -The amount to be allowed him was necessarily involved, and the trial court committed an error in giving him the entire fee-simple title.
The case will be remanded for a decree awarding plaintiff a life estate in the property and a fee-simple title to an undivided one-sixth interest therein; and to the defendant a fee-simple title to an undivided five-sixths interest therein, subject to plaintiff’s life estate in the homestead. The defendant will pay one-sixth and the plaintiff five-sixths of the costs.- — Reversed and remanded.