Part 3 (1/2)
Every conveyance made by a husband and wife shall be deemed sufficient to pa.s.s any and all right of either to the property conveyed, unless the contrary appears on the face of the conveyance [--3107]. While Iowa was still a territory, in 1840, power was conferred upon a married woman to release her dower and to convey her real estate by any conveyance executed by herself and husband and acknowledged by a separate examination and acknowledgment. This law was re-enacted in 1846, and was the first law pa.s.sed in the State of Iowa for the better protection of married women. This remained the law until 1851, when an act was pa.s.sed by which she might convey her interest in real estate ”the same as any other person.”
[Sidenote: Interest of either in other's property.]
When property is owned by either the husband or wife, the other has no interest therein which can be the subject of contract between them, or such interest as will make the same liable for the contracts or liabilities of either the husband or wife who is not the owner of the property, except as provided in this chapter. [--3394.] The distributive share or dower interest of each in the property of the other, is inchoate and becomes complete only upon the death of the owner of the property; consequently any agreement between the husband and wife relinquis.h.i.+ng their respective interests in each other's property, though such agreement should be made in contemplation of separation is invalid. Upon a dissolution of the marriage relation by divorce, the husband and wife may contract with each other with reference to a division of the property, provided the contract is reasonable, just and right. A husband may pay taxes and interest on an inc.u.mbrance on a homestead owned by his wife, but occupied by both, and may make repairs upon the same. He may make improvements on land owned by the wife and may expend time and labor in caring for any of her property, without rendering such property liable for his debts, provided there is no collusion between them and no evidence of fraud on the part of either.
A wife's property cannot be taken for her husbands debts, although it may be in possession of the husband and the creditors have no notice of the wife's owners.h.i.+p.
[Sidenote: Remedy by one against the other.]
Should either the husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and extent as if they were unmarried. [--3395.] If property or money belonging to the wife, but in possession of the husband is used by him, with her knowledge and consent, in the payment of debts incurred for family expenses, or for other purposes connected with the support of the family, she cannot recover for the same, in the absence of an express agreement on his part to repay her. If a wife advances money or property to her husband to be used as he may choose, the presumption is that she does so in view of the mutual benefits which may accrue from the advancement and she cannot recover the same unless there is an agreement for its repayment.
[Sidenote: Husband not liable for wife's torts.]
For all civil injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be responsible therefor except in cases where he would be jointly responsible with her if the marriage did not exist [--3396.] This statute abrogates the rule of the common law, making a husband responsible for civil injuries committed by his wife. The common law presumption that criminal acts done in the presence of the husband were by compulsion, is still recognized in this State but may be overcome by proof to the contrary.
[Sidenote: Conveyances to each other valid.]
[Sidenote: Conveyances to third parties.]
A conveyance, transfer or lien executed by either husband or wife, to or in favor of the other shall be valid to the same extent as between other persons [--3397.] When the rights of creditors might be prejudiced by transfers of property between husband and wife, such transactions will be closely scrutinized, and the utmost good faith must plainly appear, but where no fraudulent intention is shown they will be upheld if based upon an adequate consideration. If a conveyance is made by the husband to the wife when the husband is largely indebted and insolvent, such conveyance is presumptively fraudulent, but a conveyance to a wife in payment of a valid claim, even though made at a time when the husband is largely indebted to others, will not be considered fraudulent the wife having the same right as other creditors to obtain payment. All contracts between husband and wife where no other consideration appears than an agreement to perform some duty already inc.u.mbent upon the parties, because of their relations as husband and wife, are against public policy, and will not be enforced in law. Such, for example, as a promise by the husband to pay money to the wife to induce her to live with him, when she has no legal ground for not living with him; or an agreement to allow the husband to obtain a divorce when he has no legal cause for divorce, or a conveyance of property in consideration of future care and support because the husband is growing old; or a contract between husband and wife by which the husband agrees to pay the wife at stated intervals, sums of money, in consideration of the faithful performance by the wife of the obligations incident to the marriage relation. But our courts have held that exempt property may be transferred by the husband to the wife without any consideration; that a deed from husband to wife in consideration of a dismissal by the latter, of a proceeding for divorce, is valid; that a contract between husband and wife by which the wife, for a consideration, after a decree of divorce, agrees to release all her dower interest in the real estate of the husband, is binding. Voluntary conveyances, in favor of third parties, by a man or woman in contemplation of marriage, and with the evident intention of defeating the marital rights of the other party, in such property, will be held fraudulent, and may be set aside in an action by the injured party after marriage. Contracts and conveyances made before marriage and duly recorded, will not be set aside on account of the marriage relation, as the fact of recording is sufficient to charge the wife with notice of the transactions. Ante-nuptial contracts, if free from fraud and imposition, are valid, and such a contract stipulating that each is to have the untrammeled and sole control of his or her own property, real and personal, as though no marriage had taken place, will be enforced. The dower right of each in the other's property is completely waived by such contract.
[Sidenote: Abandonment of either.]
In case the husband or wife abandons the other and leaves the state, and is absent therefrom for one year without providing for the maintenance and support of his or her family, or is confined in jail or the penitentiary for the period of one year or upward, the district court of the county where the husband or wife, so abandoned or not confined, resides, may, on application by pet.i.tion setting forth fully the facts, authorize him or her, to manage, control, sell and enc.u.mber the property of the husband or wife for the support and maintenance of the family and for the purpose of paying debts. Notice of such proceedings shall be given as in ordinary actions, and anything done under or by virtue of the order of the court, shall be valid to the same extent as if the same was done by the party owning the property. [--3398.] A wife who is abandoned by her husband without her fault, may pledge his credit for necessaries, and if left in the management of his business may make all contracts incident to such management. She may also sell exempt property and apply the proceeds towards the support of the family before absolutely forced to do so by the dest.i.tution of the family.
[Sidenote: Contracts and sales binding.]
All contracts, sales or inc.u.mbrances made by either husband or wife by virtue of the power contemplated in the preceding section, shall be binding on both, and during such absence or confinement, the person acting under such power, may sue and be sued thereon, and for all acts done, the property of both shall be liable. No suit or proceeding shall abate or be in anywise affected by the return or release of the person confined, but he or she may be permitted to prosecute or defend jointly with the other. [--3399.]
[Sidenote: Decree set aside.]
The husband or wife affected by the proceedings contemplated in the preceding sections, may have the order or decree of the court set aside or annulled, but the setting aside of such decree or order shall in nowise affect any act done thereunder. [--3400.]
[Sidenote: Attorney in fact.]
A husband or wife may const.i.tute the other his or her attorney in fact, to control and dispose of his or her property for their mutual benefit, and may revoke the same to the same extent and manner as other persons.
[--3401.] The fact of the marital relation does not, of itself, establish the presumption that the husband is the agent of the wife, for the transaction of business for her, but in order to bind her, he must be expressly authorized to act as agent, or she must, after knowledge of the act, expressly or impliedly ratify it. Such agency or ratification may be established by circ.u.mstances, and the degree of evidence required in such cases, is less than is necessary to establish an agency between independent parties, or the ratification by the husband, of acts done by the wife or his agent.
[Sidenote: Wages of wife.]
A wife may receive the wages of her personal labor and maintain an action therefor in her own name, and hold the same in her own right; she may prosecute and defend all actions at law or in equity for the preservation and protection of her rights and property as if unmarried.
[--3402.] The husband is ent.i.tled to the wife's labor and a.s.sistance in the duties and obligations growing out of the marriage relation, and to her earnings, if she is not engaged in a separate business on her own account; but her earnings for services performed for others than her husband or acquired in carrying on an independent business, belong to her alone. Such earnings may be invested in property and it will be exempt from seizure for debts of her husband.
She may bring actions for injuries to herself, whether of person, property or reputation in the same manner as if she were unmarried. If she suffers personal injury by which the husband is deprived of her services or society he has a right of recovery for such loss and for expenses for medicine and medical treatment. The wife cannot recover in such case, unless it appears that she has expended her own money in payment of such expenses. If, at the time of the injury she is engaged in a separate business, and death results, the husband may still recover for loss of society and expenses, but an action for damages can be brought only by the administrator of her estate. Although husband or wife may maintain an action against the other for the recovery of property, neither has a right of action for damages sustained by the infliction of personal injury, and this is true even though the one inflicting the injury has been criminally convicted and fined for the a.s.sault.
[Sidenote: Property of one not liable for debts of the other.]
Neither husband or wife is liable for the debts or liabilities of the other incurred before marriage, and except as herein otherwise declared, they are not liable for the separate debts of each other; nor are the wages, earnings, or property of either, nor is the rent or income of such property liable for the separate debts of the other [--3403.] The husband is liable for necessaries furnished the wife, upon an implied obligation to provide for her a reasonable support. The term ”necessaries,” is not confined to the supply of things actually demanded for her sustenance, such as food, clothing and medicine, but includes all that may be needful for her comfort and happiness according to her rank and station in society. In determining the extent of the husband's liability, it is always proper to consider the wife's social position and the circ.u.mstances and condition of the family, and these will, of course, vary in each particular case. It has been held that jewelry is included in the term necessaries and that attorney's fees in divorce proceedings by the wife, can be recovered from the husband. If the wife is compelled to leave her husband because of cruel and improper conduct on his part, the husband is still presumed to have extended to her a general credit for necessaries, such as meat, drink, clothes, medicine, etc., suitable to his degree and circ.u.mstances.