Officer & Pusey v. Evans

1. evidence : proarfcóntract. I. The burden of proof is upon the plaintiffs to establish, by a preponderance of evidence, the contract set forth in the petition. From a careful examination °f the entire evidence we cannot affirmatively fiitd erjg£ence 0f the contract is so established. The most that can be said for the testimony upon that is, that it is in equilibrio.

*5602. homestead: itorsffusband andwite. *559II. The evidence shows very satisfactorily that the defendant E. B. Evans, prior to her marriage with her co-defendant, *560was the owner of three hundred and twenty acres-, °f land in Nebraska, of the value of two thousand dollars. After her marriage, in the spring of' 1867, she received by gift from her father half of the Parks mill property, valued at eight thousand dollars. Her husband sold the Nebraska land in 1867 for two thousand dollars,, and the Parks mill property in 1868 for six thousand dollars,, and received the proceeds in cash, with the understanding: that he was to convey to E. B. Evans, in lieu thereof, property of the value of ten thousand dollars. The defendants commenced occupying the Glendale property, as their homestead, in February, 1866. In 1869 the Glendale property was conveyed to S. S. Bayliss for his homestead and the brick barn in question. Bayliss and his wife refused to make the deed for this property unless it was made in favor of E. B. Evans, in lieu of the property they had given her, and which was appropriated by her husband. The inducement which caused E. B. Evans to convey her homestead right in the Glendale property was the obtaining of a deed in her own name for the Bayliss homestead and barn.

Under the circumstances disclosed, we think the conveyance to E. B. Evans was not without consideration nor fraudulent. At the time that her husband appropriated the-proceeds of her real estate under the circumstances disclosed, she became his creditor. As such she was entitled to repayment. A conveyance to her of real estate in satisfaction of this debt was not fraudulent as to other creditors. Besides, the Glendale homestead was not liable for plaintiffs’ claim. The-defendants might have made a voluntary conveyance of this, homestead, and it would not have been fraudulent as' to creditors. See Delashmut v. Trau, 44 Iowa, 613. No conveyance-of the homestead would be of any validity without the concurrence of the defendant E. B. Evans. As she was under no obligation to convey, and could not be compelled to convey, she had a perfect right to fix the conditions upon which she: *561would consent to convey. The evidence shows that she consented to convey only upon condition that the property received for the homestead should be conveyed to her. She had a right to exact this condition, and, as the homestead was not liable for plaintiffs’ debt, it seems to us the property which she received in lieu of the homstead, and which induced her to part with her homestead, should also be held exempt. The plaintiffs suffer no injury from such a construction of the law, for they are thereby placed in no worse condition than they occupied before. It is true if she had allowed the avails of the sale of this homestead to pass into the hands of and become the property of her husband, it would, if not reinvested in a new homestead, have become the property of her husband, and liable for his debts. But this she did not do.

It is claimed, however, that in the exchange with Bayliss S. S. Evans obtained the payment of a debt of three thousand dollars, which Bayliss owed him, and that to that extent, at least, the property in question should be regarded as the property of S. S. Evans, and liable for his debts. The only evidence of this act is proof of a declaration of S. S. Evans, which is not admissible as against the defendant E. B. Evans. Besides, the proof shows that the Glendale property was estimated at ten thousand dollars, and that the real estate conveyed in exchange for it was estimated at the same, so that it could not have, in fact, discharged a debt due S. S. Evans.

We are of opinion that the judgment should be

Affirmed.