Wright v. Wright

1. Res adjudioata. A decree which ordered that a certain fund should be paid into court, but made no final disposition of the same, and granted to one of the parties leave to fill a bill, asserting a claim to the same within a time limited, does not -bind the parties as a prior adjudication of such claim. 2. Same : divorce. A decree in an action for a divorce which determined the claims of the wife arising out of the marriage relation to a certain fund, does not operate to estop her from claiming the same fund by an action founded upon a contract. 3. Husband and wife: post-nuptial contract. A contract between a husband and a wife which is supported by a sufficient consideration and is not tainted with fraud, is valid as between the parties and against the subsequent creditors of the husband. i. Same. When the legal title to the homestead lot was in the husband, but the improvements thereon were principally made with funds advanced by the father of the wife, for the purpose of securing a home for her, and when the wife concurred in the execution of a mortgage conveying the - same, under an express agreement with the husband that the proceeds of the property when sold should be applied, first to satisfaction of the mortgage, and the balance thereafter remaining should be paid to the wife, to be held by her in her own right, it was held, that the contract was binding against the husband and his subsequent creditors.

Appeal from Seott District Court. The subject matter of this controversy was referred by tbe chancellor to a master wbo reported the facts found by him, out of which the same arose, together with his conclusions of law thereon, as follows : “ To the District Court of Scott County: I, the undersigned, to whom the above entitled cause was referred by an order of said Court, to hear and determine the same and report my conclusions of fact and law, do hereby report that, in pursuance of said order, the said cause has been fully heard before me, and that I have heard the proofs and allegations of all the parties thereto, and the arguments of counsel for said parties respectively: That, upon said hearing, the plaintiff read in evidence the depositions of II. J. J. Jentsen, William E. Young, Isabella Wright and John L. Davies, taken for the plaintiff in this cause, and oh file herein: That the defendants read in evidence the pleadings and decree in a suit in this Court, between Isabella Wright, plaintiff, and Alexander Wright, defendant, for divorce. Also the pleadings and decree in the consolidated causes of Laura Clao’le and al. v. Alexander Wright and ais., and H. J. J. Jentsen v. Laura Ciarle and als., and-the cross bills filed therein in this Court. “Also the deed of assignment from Alexander Wright' to Solomon Lombard, referred to in the pleadings; also .an order by the District Court of Black Hawk county, transferring the proceedings on said assignment to the Scott County District Court; also, the promissory notes and mortgage executed by Laura Clark and William T. Clark to Alexander Wright, and referred to in the pleadings; also the deposition of Alexander Wright, taken for defendants, and on file herein; also, the deposition of Thomas Yarwood, taken in the said consolidated suits aforesaid, on the behalf of Alexander Wright, it being- admitted by plaintiff that said Yarwood had since deceased; also, judg■ments on confession in this court, against Alexander Wright, in favor, respectively, of E. A. McNain, James Grant and Green & Co., being the same referred to in the petition of intervention filed by said judgment creditors; also parts of tbe deposition of Isabella Wrigbt, taken and on file in said consolidated suits, to wit, cross interrogations, Nos. 22 and 27, and the answers thereto; also, direct interrogatory No. 13, and the answer thereto in the deposition of H. J. J. Jentsen, taken and on file in said suit for divorce of Isabella Wright against Alexander Wright: That the foregoing was all the evidence introduced on the said hearing: That the several exceptions filed by the parties respectively to the depositions herein, were first heard and determined by me, and the same were sustained as to such parts of said depositions as are marked by me, “excluded,” on the margin thereof, and overruled as to the remainder. “And upon the said evidence I report the following as my conclusions of facts, to wit: “1st. The plaintiff Isabella Wright, and the defendant Alexander Wright were married in the year 1852. In the year 1854, said Alexander Wright, being the owner in fee of a lot on Brady street in the city of Davenport, known as lot No. 5, G-oldsmith’s addition. David Hardy, the father of said Isabella Wright, furnished to said Alexander Wright the sum of six hundred dollars, with the express understanding and agreement that the same should be used in the erection of a dwelling house on said lot; and that said house and lot should constitute a homestead for the said Isabella and Alexander Wright, but no other or further agreement as to the ownership or enjoyment of said real estate property was then made. “ 2d. The said sum of money was accordingly employed by said Alexander Wright in the erection of such house; and said house and lot were afterwards used and occupied by said Alexander and Isabella Wright as their homestead, from July, 1854, till July, 1856. “3d. In June, 1856, said Alexander Wright borrowed from H. J. J. Jentsen the sum of fifteen hundred dollars, and Alexander and Isabella Wrigbt joined in executing a mortgage to said Jentzen, to secure the payment of said loan upon said house and lot. Said money was borrowed for the purpose of enabling said Alexander Wright to go into mercantile business at Cedar Falls, in Black Hawk county, to which place said Alexander and Isabella Wright then intended to remove, in order that said Alexander Wright might so commence business there. “4th. In July, 1856, the said Alexander and Isabella Wright did remove their residence from said Davenport to said Cedar Falls, with the intention of making the latter place their permanent residence, and of abandoning their former domicile at Davenport. And said Alexander Wright did go into business at Cedar Falls, and he and his said wife resided there together until February, 1857. “ 5th. At or about the time of such removal, to wit, July 8, 1856, said Alexander and Isabella Wright joined in executing a power of attorney to Thomas Yarwood, authorizing and empowering him to sell and convey the said house and lot for such sum, and on such terms as to him should seem meet, and to relinquish said Isabella Wright’s right of dower therein. v “In consideration of the said Isabella Wright’s joining in the execution of said power of attorney, it was then verbally agreed between said Alexander and Isabella Wright, that the surplus of the purchase-money or proceeds of said premises, when sold by said Yarwood under said power over and above the amount necessary to satisfy and discharge the said mortgage thereon to said Jentzen, should belong to, and be, the property of the said Isabella Wright. “ 6th. Under and in pursuance of said power of attorney, said Yarwood, on or about February 2d, 1857, as the attorney of Alexander and Isabella Wright, sold and conveyed the said house and lot to Laura Clark, and applied that part of the purchase-money, paid in cash, in satisfying and discharging the said mortgage to Jentsen, and for the balance of the purchase-money, took two promissory notes, made by said Laura Clark and William T. Clark, her husband, payable to the order of said Alexander Wright, dated February 2d, 1857, each for the sum of six hundred, and seventy-five dollars ($675), with interest thereon at ten per cent per annum, and payable, the one in one, and the other in two years after the date thereof. And the said Laura Clark, at the same time executed to Alexander Wright a mortgage upon the -said house and lot, to secure payment:of the said promissory notes. “7th. 'Said Yarwood shortly after receiving said promissory notes, and in the month of February, 1857, indorsed the same, “Alexander Wright, by.Thomas Yarwood, his attorney in fact,” and delivered them to said Isabella Wright. But this -was done without the knowledge, or consent of said Alexander Wright. . “ 8th. On the 21st day of March, 1857, said Alexander Wright being insolvent, executed a deed of general assignment of all his property not exempt from execution, including said two promissory notes made by Laura and William T. Clark to the defendant Solomon Lombard, in trust, for •the benefit of his creditors. “ 9th. The said note of Laura and William T. Clark, due in one year after date, was, before maturity thereof, indorsed •and transferred, by said Isabella Wright to said Jentsen, as ■security for an advance of money, made by him to her. After the rendition of the decree in the consolidated suits, hereinafter set forth, said note was re-transferred by said Jentzen to said Isabella Wright. “ 10th. On or about March 29th, 1859, said Laura and William T., Clark filed their, petition of interpleader in this •court, making said Alexander and Isabella Wright, Solomon Lombard and Jentsen parties defendant thereto, setting forth the making of said note and mortgage as aforesaid, and alleging that each of said defendants claimed to be entitled to the same, and offering to pay the amount due thereon into court, and praying that said defendant might interplead as to their rights thereto. “ In said suit each of said defendants filed an answer and cross bill, said Lombard and Alexander Wright both, respectively, claiming to be entitled to said notes and mortgage, and said Alexander Wright praying for a foreclosure thereof for his own benefit. “ Said Jentsen claimed to be entitled to said notes so transferred to him by Isabella Wright, as indorsee thereof; and said Isabella Wright claimed to be entitled to said notes, as against Alexander Wright and his said assignee upon the ground that she contributed largely of money, furnished her by her father, towards the erection of the house on said lot, and that said Alexander Wright agreed, in consideration of her executing the said power of attorney to Yarwood, that she should receive the surplus proceeds of said property over and above the amount of the incumbrances existing thereon; and alleged the said transfer of one of said notes by her to said Jentsen and her own continued ownership of the remaining note. “Afterwards, to wit, on or about November 17th, 1860, saidH. J. J. Jentsen commenced a distinct suit in this court for the foreclosure of said mortgage, alleging himself to be the indorsee of said note, and making Laura Clark, Solomon Lombard, Erastus Ripley, Henry Miller and Sebastian Miller, parties defendant thereto. Afterwards, by an order of this Court, said suits were consolidated, and such proceedings were had therein .that, at the August term, 1862, a decree was rendered in said consolidated suits, of which a copy is hereto annexed and made part of this report, marked exhibit ‘A.’ Said Laura and William T. Clark, having failed to pay the amount specified in said decree, as founded therein, a special execution was issued thereon, under which, the said house and lot were sold by the sheriff, October 4,1862, and the proceeds thereof less the costs and éxpenses of such sale, amounting to the sum of two thousand one hundred and twenty-nine x4/„ dollars, were paid into court, and constitute the subject ihatter of the present suit. “ 11th. On or about January 14th, 1860, said -Isabella Wright commenced a suit in this Court against said Alexander Wright, praying for a divorce from the bonds of matrimony, and for alimony, alleging, as grounds therefor (among others), desertion and abandonment and failure to maintain her by said Alexander Wright from and after February, 1857, and also habitual drunkenness on his part. “By an amended petition, filed in said cause October 15th, I860,' said Isabella also claimed to be entitled to the amount due on said note from Laura and William T. Clark, but without setting up the particular grounds of her claim, and prayed, in addition to a divorce, that the same might be decreed to be paid to her. Said Alexander answered said petition, and afterwards, upon a hearing of said cause upon pleadings and proofs, a decree was rendered therein, dismissing the plaintiff’s petition. “ And, upon the facts thus found, I report the following as my conclusions of law, to wit: “ 1st. That said Isabella Wright is not barred nor estopped by the said decree, rendered in said consolidated suits, from setting up the claims and grounds of claim in her petition herein contained, or any of them. “ 2d. The said Isabella Wright is barred and estopped by the said decree in her said suit of divorce, from claiming the said fund, in court, by reason of desertion or abandonment or failure to maintain her, or other misconduct of her said husband Alexander Wright, but not from claiming it on any other ground. “ 3d. Said Isabella Wright has voluntarily relinquished her homestead right in said house and lot, and is not entititled to said fund, or any part thereof, by reason of its being the proceeds of her homestead. “4th. Said Isabella Wright did not become entitled to any separate estate or interest, legal or equitable (other than the right of homestead, as defined by law), in the house and lot, by virtue of the facts stated in m j first and second conclusions of fact, as hereinbefore set forth, and she is not entitled to the said fund or any part thereof in consequence, or by virtue of said facts. “5th. The agreement between said Isabella Wright and Alexander Wright, stated in my fifth conclusion of fact, as hereinbefore set forth, is valid and binding in equity as between said parties thereto. And said Isabella Wright is entitled, by virtue thereof, as against said Alexander Wright to the whole of said fund in court. “6th. Said Isabella Wright has the same rights to said fund as against said Solomon Lombard, assignee of Alexander Wright as aforesaid, and the creditors of said Alexander, as she has against said Alexander Wright. • “ 7th. A decree should be entered, declaring said Isabella Wright to be entitled to the whole of said fund in court, and ordering the same to be paid over to her, and that she recover her costs; and that the cross petition of the several defendants hereto be dismissed with costs. “John N. Rogers, Referee. “Dated November 4th, 1863.” This report was approved by the Court below, and a decree rendered in accordance therewith, from which respondents appeal. I. If the wife leaves her separate personal property in the possession of the husband, without filing for record the notice contemplated by section 2500 of the Revision of 1860, it becomes liable for the payment of his debts. Odell & Updegrajf' v. Lee & Kinnard, 14 Iowa, 412; Smith v. Hewett, 13 Iowa, 94. II. To sustain a' settlement of personal property on the wife, the consideration must be adequate. 2 Kent, 174; Lady Arundel■ v. Phillips, 10 Yes.; Bullard v. Briggs, 7 Pick., 533. III. A parol agreement between the husband and wife is not valid against the creditors of the husband or an assignee, as to debts contracted before notice was filed for record, as required by the statute. Oddi & Updegrajf v. Lee & Kinnard, supra. I. The agreement between complainant and her husband, that the surplus proceeds arising from the sale of the homestead after paying the mortgage, should be hers, is valid in equity against Wright. 2 Story Eq. Jur., §§ 1373 and 1377 a. The intervention of a trustee is not neeessary. MeOrory v. Foster, 1 Iowa, 278; 2 Kent, 162; Livingston v. Livingston, 2 John. Ch., 537; Garticle y. Strong, 3 Paige, 440; Ogden v. Giddings, 15 Tex., 485. II. The assignee takes only such rights as the assignor had. Story Eq. Jur., § 1038; 2 Kent, 173. III. The former decrees were not a final adjudication of the. precise question raised in this case.