Eli v. Gridley ( 1869 )

Beck, J.

i homestead - Lusíandnana°f: lvlfe' I. The evidence quite satisfactorily establishes the facts that plaintiff, Elizabeth, did not sign nor acknowledge the deed, nor authorize its executiou, and in no way consented thereto. It also clearly appears that the land described in the deed was occupied by plaintiffs as. a homestead. But it is insisted that if more than forty acres are claimed as a homestead, the burden rests upon plaintiffs to show that their undivided interest therein does not exceed $500 in value. We are well satisfied by the evidence that the value of plaintiffs’ interest in the whole tract did not exceed $500.

2. notice: arising from possession, II. It is objected that defendant had no notice of fraud in the deed. Plaintiffs were in the possession of the land when Lyons conveyed it to him, and he . . ’ is therefore chargeable with notice of plaintiffs’ equities and rights.

III. It is claimed that - because the husband acted in bad faith in the £ale o'f the land, he cannot be permitted to deny plaintiffs’ title thereto. If the husband’s rights only were involved there might be force in this position. But the wife’s rights and those of her family are in question, and they cannot be affected or prejudiced by the fraudulent acts of her husband.

IY. This action was not commenced until the expiration of nearly a year from the date of the deed. It is claimed that by this delay the plaintiffs acquiesced in the title of defendant. We do not think the objection is at all tenable. The wife seems to have resisted defendant’s claim, as soon as he attempted to enforce it, and commenced this suit before he had recovered possession by a proceeding at law.

Y. It is insisted that plaintiffs are estopped by their acceptance of the consideration of the sale. The wife received no part of the consideration. The argument might be sound against the husband, were he the only one concerned, but., as we have seen, the wife’s rights are involved, and cannot be affected by the husband’s frauds.

The decree annuls the deed, without any reservation as to the interest of the brother, G. W. W. Eli, conveyed therein. The deed is good as to him, and he does not ask to have it set aside. The decree in this respect is therefore erroneous, and must be modified accordingly. As to the plaintiffs, John A. and Elizabeth J. Eli, the deed is of no validity (Rev. § 2279), and, as to them, the decree will be permitted to stand. A decree in accordance with this opinion will be entered in the District Court, the cause being remanded for that purpose.

Modified and Affirmed.