Hyatt v. O'Connell ( 1906 )

McClain, C. J.

The plaintiff was married in 1851 to Geo. E. Hyatt, who, prior to March, 1855, acquired title in the real property to which this action relates, which title he conveyed to defendant’s remote grantor .on that date, the plaintiff not joining in the deed. Geo. E. Hyatt died in 1903, and this action was soon after commenced for the admeasurement of plaintiff’s dower in the property. The court decreed that plaintiff was- entitled to one-third of the property for life to be specifically set off to her, and if admeasurement be found impracticable then, that the rent which defendant should pay to plaintiff during her life in lieu of the possession of a specific share be determined, and provided for the appointment of referees. Counsel for- appellant do not seriously question the correctness of the decree as to the right of the wife in such case as this, to have her dower interest set off from any land conveyed by her husband during the coverture in the conveyance of which she has not joined. Such right is fully recognized in Lucas v. White, 120 Iowa, 735; Lucas v. Whitacre, 121 Iowa, 251; Purcell v. Lang, 97 Iowa, 610.

It is contended that under the evidence an estoppel is made out so as to bring the case within the principle recognized in Dunlap v. Thomas, 69 Iowa, 358, and Williams v. Wells, 62 Iowa, 740, but we find nothing in the evidence to support an estoppel. Plaintiff had no dealings with the purchaser of the land from the husband, and made no representation to him. When her husband asked her to sign the deed, she refused to do so, and he then sold the land without his wife’s joining in the conveyance. There is nothing to indicate any connivance by the wife in any plan or representation by which the purchaser was induced to believe that the grantor was unmarried.

It is urged that plaintiff allowed her husband to use the proceeds of the land in the support of the plaintiff as a member of his family, and that this estops her from asserting an adverse claim; but there is no merit in this contention. She was not required to leave her husband and refuse to receive support from him because he sold the land without her consent.

The trial court decreed that plaintiff should recover the rent of her one-third interest from the death of her husband to the time of the final decree. As the record does not show any demand' by plaintiff of her dower interest until the institution of this suit, she is not entitled to rent prior to the time this suit was instituted. The question involved is similar to that decided in Felch v. Finch, 52 Iowa, 563, in which it is said that the widow “ cannot recover damages or rent for withholding her dower until demand be made for its assignment.” The trial court should not, therefore, have directed that the referees take into account the rent from the time of the husband’s death to the time of bringing suit.

With this modification, the decree is correct.— Modified and affirmed.