Westfall v. Lee , 7 Iowa 12 ( 1858 )

Woodward, J.

This case presents to us an unusual and peculiar state of facts. It does not seem necessary to •enter into a detail of the matters of the answer, in order to reach the questions involved. Between Lee and West-fall, there is an issue as to the amount due on the note. Lee states that he had assigned to A. & W. A. Saunders an interest of seven hundred dollars of the note. The two persons who are made parties defendant, by the complainant, viz: Lee, and the sheriff, Devol, having made answer, Walters and the Saunders, appear and ask leave to answer. The Saunders assert their right in a part of the note, and claim that they took it, and hold it, irrespective of any equities between the prior parties, Westfall, Lee, and Walters, and pray a sale of the land and the payment of their claim. Tlie answer of "Walters is a statement of the transactions between him and Westfall, and amounts but to testimony, sustaining the allegations in the answer of the said Lee.

There does not appear any good reasons why these persons were permitted to become parties to the suit, and to answer, especially in the case of Walters, and there may have been some impropriety in it. And if we, found any necessity for supposing, that the court was governed in its action, by the answers of those persons, it might influence our own views of the case. But whatever weight there might be in these questions and doubts, the necessity of considering them, and with them the answer referred to, is superseded by the answer of Lee. This is sufficient to support the decree against the complainant, so long as his bill remains unsupported by evidence. . The cause appears to have been heard upon bill and answer, and under this view, there was no error in the action of the court.

Some doubt has been felt by a portion of the court, whether the respondent was entitled to a decree of foreclosure and sale, without fling a cross-bill, praying that relief, or making such prayer in his answer, and causing that to stand for a cross-bill also. Compton v. Comer, 4 Iowa, 577; Armstrong v. Pierson, 5 Ib., 317. A majority of the court, however, are inclined to regard section 20S4 of the Code, as authorizing the district court, upon ascertaining the amount due, to proceed and decree afore-closure and sale. Thus far the decree of the court below will be affirmed. But as far as the decree cuts off and forecloses the interest in dower of the wife, we think there was error. Although the wife joined in the body of the deed, yet as the transaction shows itself to be wholly one of the husband alone, and not one in which she was in fact a party, it has been the practice of the courts, in such cases," to regard her as joining only for the purpose of releasing her dower. She is not bound by the covenants, for instance, in such cases. But in the present case, as she has not expressly relinquished her right to dower, and as there is no acknowldgment of the deed by her, certified by an officer authorized thereto, she cannot be held to have released her right, so as to be forever barred and foreclosed therein.

That part of the decree of the district court, therefore, which forecloses the right of dower of the wile, will be reversed, and the remainder will stand affirmed.