Sharff v. Hayes , 132 Iowa 609 ( 1906 )

Lade, J.

J. M. Hayes was the owner of one hundred and twenty acres of land. As a condition to signing the contract of sale and deed thereof to a purchaser, his wife, Jane, Hayes, exacted the payment to her of one-third of the price received. • With part of this she purchased the east forty-four feet of lots 11 and 12 in Aurora, used as a livery barn. Though other property is mentioned in the petition no claim thereto is made in argument, and it is not essential to. an understanding of the case that other transactions be recited. The evidence does not bear out the suggestion of appellee that the farm was. occupied as a homestead, and, even though it supported an estoppel, which it does not, this was not pleaded. The evidence though not direct was such as to warrant a finding that Hayes was insolvent at the time of the several transactions referred to. The sole question raised by the record is whether the wife of an insolvent husband may acquire and retain, as against his creditors, a part of his property in consideration of joining him in the conveyance of his real estate. But for such transfer, her interest might be divested by judicial sale. Section 3366, Code. The marital interest of one spouse in the property of the other, however, cannot be the subject of contract between them. While either may own property in his own right section 3154 of the Code expressly provides that, “ when property is owned by the husband or wife, the other has no interest therein which can be the subject of contract between them.” In Miller v. Miller, 104 Iowa, 186, a note given by the husband to the wife for relinquishment of dower was held to be void, and in Garner v. Fry, 104 Iowa, 515, payment of money to the wife therefor was thought to be without consideration, though rightly treated as a gift as against subsequent creditors. In Pool v. Burnham, 105 Iowa, 620, an agreement as to the interest of the husband in the wife’s property, real or personal, upon her decease was declared invalid. In Sawyer v. Biggart, 114 Iowa, 489, a power of attorney authorizing the husband, as attorney in fact, to relinquish her dower interest in his property was adjudged, void. See Linton v. Crosby, 54 Iowa, 478; Newberry v. Newberry, 114 Iowa, 704. In Caruth v. Caruth, 128 Iowa, 122, the statute was construed as one of descent and distribution, and a separation contract depriving the wife, of any right in the estate of the husband ignored in the distribution of the property of the deceased husband. It was there conceded that, but for this statute, the rule would be otherwise. Numerous decisions cited by appellee so indicate. The right, though inchoate, is valuable, as contended. But she cannot convey it as a separate and independent interest to a third party or to her husband, McKee v. Reynolds, 26 Iowa, 578, and Linton v. Crosby, 54 Iowa, 478, and, under the statute quoted, may not enter into any agreement whatever with her husband concerning it. As neither husband nor wife can be bound by such a contract, it is manifest that the payment of any money or the execution of a note or conveyance, in carrying out its terms, is utterly without consideration, and, even though regarded ’ as in the nature of a gift, as. was held in Garner v. Fry, supra, would not be valid as against the existing creditors of an insolvent spouse. Whether Mrs. Hayes was to receive the lots as she first testified, or one-third of the proceeds of the farm, as appears the more probable, for signing thq deed is immaterial for the lots were in fact purchased from the third of such proceeds, set apart to her, and, in either event, should have been subjected to the satisfaction of the claims against the bankrupt’s estate as prayed.— Reversed.