
    Chew v. Chew.
    Husband and wife: deed from husband to wife: fraud. A conveyance from husband to wife, in consideration of love and affection, will not be set aside after the divorce of the parties, on the ground that the wife had a husband living -at the time of her marriage to the grantor, if lie had knowledge of that fact at the time of its execution.
    
      Appeal from Mahaslea District Court.
    
    Wednesday, June 10.
    Plaintiff and defendant were married on -the 19tli day of December, 1866, tbe plaintiff being seventy-seven and tbe defendant forty-five years old.
    On tbe first of January, 1870, defendant filed a bill for divorce from plaintiff on the ground of cruel treatment. On tbe second of February, 1870, defendant in that suit, plaintiff in this, filed an answer denying tbe allegations of tbe petition, and cross-bill for a divorce from M. A. Cbew, on tbe ground that at tbe time of bis marriage to ber she bad a legal husband living.
    Afterward it was agreed that M. A. Chew should dismiss her action for divorce, that E. D. Cbew should dismiss bis cross-petition, that tbe parties should continue to live together as husband and wife, and that plaintiff should deed defendant tbe land in controversy.
    M. A. Cbew dismissed ber petition for divorce, and on tbe 7th day of March, 1870, tbe plaintiff deeded to ber tbe undivided one-third of sixty acres of land, and two lots in tbe city of Oskaloosa, reserving to himself a life interest therein.
    E. D. Cbew did not dismiss bis cross-petition, and in October, 1871, be obtained a divorce thereon upon tbe ground that M. A. Chew bad a husband, one Hays, living and undivorced at the time of his marriage to ber.
    This action is brought to set aside tbe deed above named. Tbe court dismissed tbe petition. Plaintiff appeals.
    
      J. A. L. Croolcham, for appellant.
    
      John F. Lacey, for appellee.
   Day, J.

— The deed is made upon consideration of love and affection. The interest conveyed is simply that which defendant would he entitled to as dower.

Plaintiff seeks to avoid this deed on the ground of fraud and mistake. He claims that he did not know of the marriage of defendant to Hays until he filed his cross-petition in the divorce suit.

The evidence, we think, quite clearly shows that he was advised of such fact, not only hy the defendant, but by other parties.

Plaintiff testifies that at the time he executed the deed, defendant said Hays was dead. But it does not appear she said he was dead at the time of their marriage. His subsequent death would not affect tbeir legal status. It would not render valid the marriage of his wife while alive.

Hence, if sbe did say Hays was dead, when the deed was made, tbe declaration was of a fact not material. Nor does it appear tbat tbe plaintiff" relied upon, or was influenced by, that statement.

The burden of proof is upon tbe plaintiff, and be must establish bis case by a preponderance of testimony. After a careful review of all the evidence we cannot say that he has shown that he made the deed under misapprehension of any material fact.

Affirmed.  