Cedar Rapids National Bank v. Lavery , 110 Iowa 575 ( 1900 )

Waterman, J.

1 2 The defendants are husband and wife. On July 26, 1896, the Aultman Company sold one John Lavery a threshing- outfit', taking in part payment his three-promissory notes, for five hundred dollars each, which notes-were signed by defendant Mary Ann Lavery as surety. This-action is founded on one of these notes, which was transferred to plaintiff, and upon which judgment was obtained January 5, 1897. At ithe time of signing the notes, and to secure the -credit for her principal, Mary Ann Lavery made a property ¡statement in writing, which showed, among other things, that she oWn^d real estate in Jones county of the value of nine thousand dollars over and above incumbrances. As a matter of fact, she did at the time own valuable real- estate 'in said county, but on February 13, 1896, she conveyed this 'to her husband, Hugh Lavery. The present action is brought to set aside this conveyance. The insolvency of Mary Ann Lavery is not disputed. The only evidence tending to show 'fraud in the conveyance is found in certain admissions made 'by Mary Ann Lavery in an examination in proceedings supplemental to execution, which was had long after the conveyance was made. Aside from oral testimony as to these admis-.sions, the written report of the referee before whom the examination was conducted was received over defendant’s objection. This report does not appear to have been signed by the witness. We think it was inadmissible. But we go further, and say that all of these admissions -and declarations of the wife were incompetent as against the husband. Such evidence is forbidden by section 4606 of the 'Code. Chapter 108, Acts Twenty-Seventh General Assembly, ¡upon which plaintiff relies, was not passed until after this cause was disposed of by the trial court. It has no retroactive effect. Another and sufficient reason for ruling out this testimony is that, irrespective of the

■relationship of the parties, the rule is that the admissions or -declarations of a grantor, after conveyance made, cannot be •received to impeach the title of the grantee. O’Neil v. Vanderburg, 25 Iowa, 104; Manufacturing Co. v. Johnson, 50 Iowa, 142; Bixby v. Carskaddon, 70 Iowa, 726; Bener v. Edgington, 76 Iowa, 105; Allen v. Kirk, 81 Iowa, 658; Neuffer v. Moehn, 96 Iowa, 731; Wait, Fraudulent Conveyance section 278. With these declarations out of the case,, there is no evidence tending to impeach the husband’s title.

3 II. While it may be umiecessary to add anything further, it is not out of place for us to say that the demurrer to the petition was properly overruled. It was based on the thought that the wife is not a proper party. We think she is. But, if not, the misjoinder could not be taken advantage of by demurrer. Dolan v. Hubinger, 109 Iowa, 408. For the reasons given, the judgment must be REVERSED.

Granger, C. J., not siting.