Cruize v. Billmire

Seevers, J. 1. dower: denee0.6: evi" íroin'i'ong011 reparation. There is no serious dispute as to what we regard as the material facts in this case. We find that the plaintiff’s ward and Peter 0. Hummel were marUed in the state of Pennsylvania, and lived and cohabited together as husband and wife until about 1852, when they separated, and never afterwards resumed the marital relation. In 1861 Peter 0. Hummel obtained title to certain real estate, which in 1874 he sold and conveyed to the defendant. The ward'of the plaintiff did not join in such conveyance. There is no record evidence that said parties were divorced. Peter 0. Hummel, however, on more than one occasion, stated that a divorce had been granted, and his neighbors, or some of them, so understood. A divorce cannot be thus established, for the reason that in this country there must at one time have existed record evidence of such fact. Counsel for the defendant, however, insist that, although record evidence of a divorce has been introdnced, one should be presumed. That such a ruje _ obtains, and has been held applicable in some instances, is undoubtedly true. 2 Bish. Mar. & Div., §§ 514-518; Blanchard v. Lambert, 43 Iowa, 228. But our attention has not been called to any authority which holds that such rule has been held apjfiicable in any case where neither party has been married again, or has lived and cohabited with another person as husband or wife, and we think no authority can be found which so holds. As we understand, the presumption can only be invoked in aid of innocence and the legitimacy of offspring; nor does it always obtain even in such cases. Ellis v. Ellis, 58 Iowa, 720; Smith v. Smith, 64 Id., 682. 3.--: action for: innocent purchaser: separation: estoppel. Because the parties lived separate and apart for so many years, and the fact that the defendant purchased land in reliance on the fact that there had been a divorce, and that Peter C. Hummel so stated, the defendant insists that the plaintiff is estopped from claiming a distributive share for his ward in the land. It [399] is well settled that it is no defense to an action for dower (in this state distributive share) that the defendant is a purchaser in good faith without notice. 2 Scrib.1 Dower, 29; Gano v. Gilruth, 4 G. Greene, 453; Felch v. Finch, 52 Iowa, 563. The mere fact that the parties lived separate and apart from each other will not create an estoppel. 4 _,lail(1 bami?pur-’ fanlwuii*1161 proceeds. As we understand, Peter 0. Hummel purchased other land with the money received from the defendant, and prior to the commencement of this action, an action was commenced to obtain for the ward of the plaintiff her distributive share in the land last purchased, and it is insisted that this fact bars a recovery in this case. It is insisted , that the transaction amounted simply to an exchange of lands, but we do not so understand it. One tract was sold and conveyed to the defendant, and another tract purchased from another person. The fact that the money received for one tract was paid for the other has no tendency to show that there was an exchange of lands. Doth tracts were purchases and sales. We therefore have no occasion to consider the rule invoked where there has been an exchange of lands. The judgment of the circuit court must be Eeversed. ' [401] REPORTS OP itt Jaw and #quiíg,. DETERMINED IN THE SUPREME COURT OP THE STATE OF IOWA, AT DES MOINES, OCTOBER TERM, A. D. 1886, . IN THE FORTIETH YEAH OF THE STATE. PRESENT: Hon. AUSTIN ADAMS, Chief Justice. “ WILLIAM H. SICE VERS, 1 •' JOSEPH R. REED, ! T “ JAMES H. ROTHROCK, f JTOam “ JOSEPH M. BECK. J