Barnes v. Gay , 7 Iowa 26 ( 1858 )

"WoonwABD, J.

Ve will examine briefly the claims of the complainant, presented in the prayer of her bill. It is to be observed, in the outset, that she appears to have relied upon the answer of the respondent, making the bill eminently one of discovery. There is no evidence in the case, except what is derived from the papers which are made exhibits, and the answer of the defendant, so far as it is responsive to the bill.

The petitioner first prays that the deed from Boak to Gay may be declared a mere security. This it is admitted to have been; but the rights of the parties depend mainly upon the subsequent transactions, which are not mentioned in the petition. The petition then prays, that Gay may be decreed to convey to her in her own right. This conlcl not be done. Sbe lias no riglit of this character. If the legal intent of the petition wore sustained, it would result- in a conveyance to the heirs at law of Thomas Barnes, and not to her in her own right. And if the bill could be sustained, we should be willing to regard it as a prayer for a conveyance to the proper uses and trusts.

We learn from the bill and answer together, that Boak conveyed to Gay, by agreement with Barnes, which was done as a security to Gay for his debt, to which was now added the sum paid by him to Boak. Gay gave a bond for a deed to Barnes. This continued the equity in the latter. But in February, 1854, Gay executed to Chamberlain a trust deed, authorizing him to sell in case the note of Barnes was not paid. That Barnes was a party to this transaction is, to some extent, at least, evidenced by the fact of his giving the note. At the same time, he took a bond from Gay for a deed, in case he should pay the note. So much we may consider as established ; and the securities bearing the same date, there is sufficient to satisfy the conscience, that Barnes was a party, by consent, to the whole of the transaction.

There is nothing expressly showing that Chamberlain had such knowledge as should cause him to be affected by Barnes’ equities; and therefore, the trust deed to him, and his sale under it, might, perhaps, cut off any right in Barnes, even though Gay was the purchaser. But, however this may be, we are statisfied, that if any circumstances affect Chamberlain with notice, the same will bring home to Barnes a knowledge of, and an assenting to, the trust deed. We have attempted thus to look at the case solely upon facts, which must be regarded as established by the bill or the answer, or by both, in order that the answer of Gay should not be taken as the scienter on the part either of Chamberlain or of Barnes.

Then, if Barnes is bound by the trust deed to Chamberlain, as we think he is, and if the sale by him was fairly made, (and nothing of the contrary nature is charged), Gay might become the purchaser, as well as any other person. He is not affected in the act of purchase. If he is to be at all, it is by some of the prior circumstances, and from these his answer, fairly responsive to the bill, exonerates him. We conclude, then, that the interest of Barnes ' is gone, and that his legal representatives have no equitable interest remaining.

This brings us to the claim upon the projüerty as a homestead. We are left entirely in the dark, as to the time when the improvements were made; and although the bill alleges that they took possession on the consummation of the contract with Boak, yet we are not satisfied that this means that they went into the actual occupancy as a homestead; for the amount of the purchase money, and the allegation of the value of the improvements, indicate that it was those improvements which rendered it actually tenantable, and tended to give it the character of a homestead. But more conclusive than this, are the facts that Barnes never had the title, and that the original debt was for the purchase, which a subsequent homestead right could not cut off.

Finally, the petitioner claims a right of dower in the land. That there is no legal title in which she is endowable, is manifest. Then, supposing a widow dowable in an equity, which we do not stop to determine, it becomes very doubtful whether there is an equity remaining here, to which an interest in dower could be attached. But the insuperable difficulty is, that Barnes had never paid for the property, whilst the petitioner’s claim is against those who stand in the place of the vendor. She could not ha^e set up this claim against Boak, and the least that can be said is, that Gay and Chamberlain stand in his place. Admitting, as before, her right to dower in an equity, then she might probably sustain a bill against the heirs or administrator, who were about to complete the decedent’s contract, and she might be let into dower, upon bearing her portion of the burden. But she cannot sustain the claim against the vendor, or those occupying his position, in a contract not performed.

That site would, be entitled to dower in an equitable interest, is clear, under the Code, but the time of Barnes’ death is not shown. And the right may have existed before the Code, as a part of the court supposes to have been the case, but there is uo call for a determination of this point.

The decree of the district court is affirmed.