
    Cascilda Laraway, Appellant, v. S. P. Zenor, Sheriff, Edward H. Litchfield, Intervener.
    Adverse Possession: color of title: Husband and wife. A quitclaim deed by a husband to his wife, of land held by him under a contract for its purchase, which, to her knowledge, had become subject to forfeiture because of his non-performance, is insufficient to vest her with color of title on which to rest a claim of adverse possession, based on husband and wife, going into pos session, as against the other party to the contract of purchase oi his successors, though she paid for the assignment made to him, with her separate property
    
      Appeal from Boone District Court. — Hon. B. P. Birdsall, Judge.
    Thursday, December 10, 1896
    This suit was brought by the plaintiff to. enjoin the execution against her by the defendant Zenor, sheriff, of Boone county, of a' writ of possession involving the east half of the southwest quarter of section thirty-five, township eighty-two, range twenty-seven — eighty acres of land situated in that county. The writ was issued upon a judgment obtained in the district court m Story county, in a suit between the intervener, Edward H. Litchfield, as plaintiff, and Isaac Laraway, the husband of this plaintiff, as defendant. Plaintiff, after alleging that she was in no sense bound by said judgment, and that the sheriff had no authority to remove her from the land thereunder, also claimed to be the owner of the property in her own right, and asked for a temporary writ of injunction restraining the sheriff from removing her from the land in question. An order was made' in chambers, for the issuance of the injunction, and at the first term following the commencement of the suit, Edward H. Litchfield, claiming to be the owner of the land, intervened, alleging his ownership, denying that plaintiff had any interest in the property, asking that his title be quieted against plaintiff’s claim, and that the injunction be dissolved. Upon these issues, thus stated in brief, trial was had, which resulted in a decree in favor of the intervener, whereby his title to the land was quieted and confirmed as against the .plaintiff’s claim, and the injunction theretofore obtained, dissolved. Plaintiff appeals.
    
    Affirmed.
    
      A. J. Holmes and Shortly & Harpel for appellant.
    
      Gatch, Connor & Weaver and Dyer & Stevens for appellees.
   Given, J.

L. As stated by counsel for plaintiff, the only question in the -case is, not whether the plaintiff could have been removed under the writ of possession in the suit against her husband, nor whether the injunction procured by her should have been vacated, but whether the plaintiff, or the intervener, is the true owner of the property. It is admitted by plaintiff that the patent, or government title, is in the intervener, and that the sole question for determination by this court, is that of the validity of the claim of plaintiff to ownership by adverse possession. Plain - tiff’s claim rests upon the following facts: G. W. Rowley entered into a contract in writing, July 27, 1874, with Edwin C. Litchfield, the then owner of the eighty acres of land in controversy, for the purchase of the same for.one thousand dollars, to be paid part in cash, and the balance in eight equal annual payments, with interest, payments commencing on the first day of January, 1876. Said contract provides that the same will become forfeited by non-payment of any of said installments, or the taxes. Rowley took and held possession of the land until December 16, 1874, when, with the consent of Edwin C..Litchfield, he assigned said contract to A. A. Wilson, who agreed to fully perform the covenants thereof. Mr. Wilson went into possession of the land, and continued to occupy it until his death, October 19, 1877. On this contract, interest was paid as follows: February, 1875, twenty dollars; January, 1876, twenty-five dollars; and January, 1877, one hundred dollars. No other payments were made. July 15, 1878, Fannie Wilson, widow, Carrie E. Clark, daughter, and Isaac Clark, her husband, sole heirs of A. A. Wilson, with the consent of Edwin C. Litchfield, assigned said contract to Isaac Laraway, h.usband of plaintiff, he agreeing to perform all the covenants thereof. Soon thereafter, Isaac Laraway and the plaintiff, with their family, went to live on said land, and have ever since resided thereon. Intervener Edward H. Litchfield became seized of the interest of his father in said land on his death. Isaae Laraway failed to make any of the payments called for by said contract, by reason of which it became forfeited by its terms. On August 26, 1879, Isaac Laraway entered into an agreement in writing with intervener for the purchase of said land for the consideration of one thousand three hundred dollars. One hundred and thirty dollars of this amount was to be paid January 1, 1881, and the balance in nine equal annual payments commencing January 1, 1882, with interest. This contract also provides that it shall become forfeited by failure to pay any of the installments or taxes. Isaac Laraway failed to make any payments whatever upon this contract. Isaac Laraway having failed to make the payment due January 1, 1881, intervener, on January 24,1881, brought an action against him to recover possession of the land, and recovered judgment therefor, December 7, 1886. A writ to place Edward H. Litchfield in possession was issued on that judgment, and this action was originally brought to restrain the execution of that writ. Thus far it is entirely clear that plaintiff has no interest or possession of the land except as wife of Isaac Laraway, and that that interest and right of possession has been fully forfeited. Plaintiff- alleges, as the basis of her ownership and right to possession of the land, as follows: That on and prior to the third day of August, 1878, she was the sole owner of a certain tract of land in Missouri; that on that day, in pursuance of an agreement between her and the said widow and heirs of A. A. Wilson, deceased, she conveyed to said Fannie Wilson, said Missouri land; that in consideration thereof, said Fannie Wilson, Carrie E. Clark, and Isaac Clark conveyed to her by deed all their right, title, and interest in and to the land in question; and that soon thereafter she took, and ever since has held, possession under and by virtue of said deed of conveyance. No such deed is produced, and plaintiff’s claim is that it in some way became lost before being recorded, while intervener contends that no such deed was ever executed; and herein we have the controlling contention in this case. It further appears that on the thirtieth day of December, 1880, Isaac Laraway, for the recited consideration of seven hundred dollars, executed to his wife an absolute bill of sale of certain farm implements, one heifer, turkeys, chickens, eighteen hundred bushels of corn, and one hundred bushels of oats, “now in the possession of said Cascilda Lara way in the county of Boone and state of-Iowa.” This was recorded December 81, 1880. On the thirtieth day of December, 1880, Isaac Laraway also executed to his wife, for the recited consideration of nine hundred and seventy-five dollars in hand paid, a quit-claim deed for one hundred and sixty acres of land, including the land in question, which deed was recorded on the same day. Isaac Laraway had no claim whatever to the eighty, other than that in suit, except under a lease.

II. Prior to August 8, 1878, these parties had negotiated and agreed upon an exchange of Mrs. Laraway’s Missouri land, for the Wilson interest in the land in controversy, and on that day met at the office of Cardell & Shortly, in Perry, Iowa, to complete the deal. Plaintiff contends that on that day Mrs. Wilson and Mr. and Mrs. Clark, executed to her a quit-claim deed for the land in controversy, in consideration of her deed to Mrs. Wilson for the Missouri land. There is a conflict in the evidence as to whether a deed was executed to the plaintiff, and we think the preponderance is in favor of the conclusion that there was not. There was no necessity for such a deed. The only interest that the Wilson heirs had was under the Rowley contract, and this interest would be fully transferred by an assignment of the contract. The Wilson heirs, either then or theretofore, assigned the Rowley contract to Isaac Laraway, and therefore were not likely to make a deed to Mrs. Lara way. It is true the assignment to Isaac Larawáy and the consent of Mr. Litchfield thereto, are dated at Ogden, Iowa, July 15, 1878; but we are satisfied that the assignment and the agreement to perform the conditions of the contract were written, ready for signatures, at Ogden, where the consent of Mr. Litchfield’s agent had to be obtained, and that they were dated to correspond with The date of the consent. Mrs. Wilson and Mrs. Clark testified that they signed but one paper on August 8, and this, we have no doubt, was the assignment of the Rowley contract to Isaac Lara way. We are strengthened in the conclusion that no deed was executed to the plaintiff from the fact that none is produced, nor its absence satisfactorily accounted for. The plaintiff insists that she had no knowledge of the Rowley con- • tract, nor of the assignments thereof, nor of the contract between Mr. Litchfield and her husband. In ■ view of the relation of Mr. and Mrs. Laraway, and all the facts and circumstances proven, it seems to us •' incredible that she did not know of these transactions. We are convinced that Mrs. Lara way conveyed her ’ Missouri land, in consideration of the assignment of the Rowley contract to her husband, and with full knowledge as to the nature of the contract, and that the transfer was to him. This being true, her posses- ' sion, as well as her husband’s, was not adverse to, but : under the contract with, Mr. Litchfield. If the inter- ■ est of the Wilson heirs had been transferred by deed - to Mrs. Lara way, instead of by an assignment of the ' contract to her husband, the condition would be the 'same, for in neither case would her possession be ' adverse to intervener. The evidence shows that Mrs. ' Laraway exercised more control over the farm, in : working, renting, and caring for it, than farmers’ ■ wives usually do; but this is explained by the fact that her husband was absent from home much of the time, working at his trade and other employments.

III. We next inquire as to the effect that should be given to the quit-claim deed from Laraway.to the plaintiff. The Rowley contract had long before become forfeited by its own terms, and neither plaintiff nor her husband had any rights under it. This quit-claim deed was made December 30, 1880, and on January 1,1881, the contract between Litchfield and Laraway became forfeited by failure to pay the one hundred and thirty dollars due that day. All that Mr. Laraway had conveyed was his right under that contract, and, if that deed may be treated as a transfer of that interest, Mrs. Laraway has forfeited all rights under it by failing to make the payments required. Knowing, as we think she did, that Laraway had no interest in the land at that time except under his contract, she took the deed subject to it, and therefore it cannot be said that her possession under that deed was adverse to intervener. She .testifies that the purpose of that deed was to divest her husband of the one-third interest that he had, as her husband, in her property. If such were the purpose, then clearly the deed does not furnish a color of title upon which to base ownership by adverse possession. We are satisfied that the execution of this deed and the. bill of sale were not good faith transactions, and that the deed was made and received with the hope of thereby, in some way, fabricating a claim of title. It seems to us clear beyond dispute, that neither Mrs. Laraway nor her husband ever had a shadow of tille to this land adverse to th.e title of Mr. Litchfield, that the only title they ever had was under the contracts with Mr. Litchfield, that the possession has been by Isaac Laraway, under • said contracts, and that the plaintiff has had no other possession or claim of right except as the wife of Isaac Laraway. The decree of the district court is affirmed.  