Pollock v. Milburn , 112 Iowa 528 ( 1900 )

Siiebwin, J.

2 There can be no question as to the effect generally of a divorce on the statutory interest of the guilty party in the land of the other spouse. The statute itself provides that the guilty party “forfeits ail rights acquired by marriage,” and has been applied in McCraney v. McCraney, 5 Iowa, 232, and in Winch v. Bolton, 94 Iowa, 573. Nor does it make any difference whether the land was conveyed before or after the divorce. Winch v. Bolton, supra. It is perhaps also true that we are bound' to presume the decree of divorce in this case regular and valid in all respects. But, while this is so, we cannot overlook the conditions of the mortgage itself, nor the fact that the defendant in the divorce proceedings was insane at the time the proceedings were had and the decree rendered. The mortgage provides that, “if Mrs. Pollock shall ever set ' aside said deed, it shall stand as indemnity for all or any loss 'the defendant may suffer on account of taking the deed under the circumstances.” This indemnity is certainly a continuing one, and, until the plaintiff showed to the court that no future contingencies could arise which would incur liability thereunder, he was not entitled to a cancellation of the mortgage.

The statute gives the insane wife a year after regaining mental capacity in which to petition to set aside a judgment •or decree rendered against her. This is an absolute right, which no one can waive for her, nor can it be affected or abridged by decree or judicial proceedings. No one can predetermine the final result that may follow such proceedings. ‘ How, then, can it be said in this'case that no future liability can be predicated on said mortgage ? Suppose the wife regains her sanity, and,for proper cause shown has the decree of divorce set aside, and finally defeats the action, what,. then, stands in the way of liability under the mortgage ? Absolutely nothing more than existed at the time of its execution, because it is not claimed that her signature thereto would deprive her of any right under the law.

8 Conceding, as we think must be done, that this case is within the scope of the statute providing a penalty for a failure to release mortgages, we are of the opinion that the facts before us would not warrant a cancellation of the indemnity, and hence no penalty can be recovered. This case comes to us upon the certificate of the trial judge, which is said not to have been made in time. The Code of 1897 requires only that it be certified during the trial term. This was done. Eor the reasons pointed out, the trial court should have given the defendant judgment. — • Keversed.