HUSBAND AND WIFE
[Sidenote: Property rights of married women.]
A married woman may own in her own right, real and personal property
acquired by descent, gift or purchase, and manage, sell, convey, and
devise the same by will, to the same extent and in the same manner that
the husband can property belonging to him. [§3393.] The husband is the
legal head of the family and household furniture, pictures and all
similar property used in the house occupied by husband and wife, is
considered as being in the possession of the husband and under his
control. Such property may be sold or mortgaged by the husband without
the consent of the wife. Property conveyed to both jointly is held by
them as tenants-in-common. Each owns an undivided one-half interest in
such property, and this interest may be sold on execution to satisfy
claims against husband or wife as the case may be. Property purchased
with funds belonging to both husband and wife is owned by them jointly,
the interest of each being in proportion to the amount of the purchase
price contributed by each.
[Sidenote: Real property, Conveyance, or contract.]
A married woman may convey or encumber any real estate or interest
therein belonging to her, and may control the same, or contract with
reference thereto, to the same extent, and in the same manner as other
persons [§3106].
[Sidenote: Conveyance by husband and wife.]
Every conveyance made by a husband and wife shall be deemed sufficient
to pass 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 passed in the State of Iowa for the better protection of
married women. This remained the law until 1851, when an act was passed
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
relinquishing 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 incumbrance 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 ownership.
[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 incumbent 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 petition setting forth fully the facts,
authorize him or her, to manage, control, sell and encumber 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 destitution of the family.
[Sidenote: Contracts and sales binding.]
All contracts, sales or incumbrances 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 constitute 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 circumstances, 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 entitled to the wife's labor and assistance 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
assault.
[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 circumstances 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 circumstances.
[Sidenote: Contracts of wife.]
Contracts may be made by a wife and liabilities incurred, and the same
enforced by or against her to the same extent and in the same manner as
if she were unmarried [§3404.] By this provision a wife is clothed with
the same rights enjoyed by her husband, and must, therefore, assume the
same liabilities. She has the same freedom to contract in reference to
her property, or other matters, and will be held to the same strict
accountability. The law will enforce her obligations with the same
impartiality, whether such obligations are express or implied. She may
contract with reference to all kinds of property, including real estate,
and may mortgage her property as security for the debt of another, in
precisely the same manner that her husband could do in similar cases.
[Sidenote: Family expenses.]
The expenses of the family and the education of the children are
chargeable upon the property of both husband and wife, or of either of
them, and in relation thereto they may be sued jointly or separately.
[§3405.] Both husband and wife are personally responsible for family
expenses. The credit may be extended to the husband and the contract
made with him alone, and the wife will be liable though she may have no
knowledge of the purchase and has given no consent thereto. It is
sufficient to show that the articles were used, or kept for use in the
family, and a judgment may be rendered against the wife alone. But the
husband cannot subject the property of his wife to any liability for
articles for family use when it appears that such articles were not a
necessity, if the wife has objected to the purchase and notified the
seller that she will not pay for the same. "Expenses of the family," are
not limited to necessary expenses, but whatever is kept or used in the
family is included in the term. A piano, an organ, a watch and other
jewelry, a cook stove and fixtures, have all been held to come within
the term "family expense," for which the property of the wife is liable.
But a reaping machine, though used by the husband in the business by
which he supports his family, is not a legitimate item of family
expense, nor can a plow be included therein. The expense of treatment of
a wife at a hospital for the insane, has been held not to be a family
expense. Money borrowed by the husband and used in the purchase of
articles which, if obtained on credit, would constitute items of family
expense, cannot itself form such an item of family expense, that the
wife may be held liable, unless the money was furnished at her request,
and the account assigned to the party furnishing the money. If a
merchant with whom the husband has no account is notified in writing,
not to sell goods to the wife and charge them to him, the merchant
cannot hold the husband responsible, unless it appears that the latter
fails to provide necessaries otherwise for his family. If the family is
supported in whole, or in part, by the wife, she cannot recover back the
money thus expended, from her husband or his estate, as the law places
such duty equally on both.
[Sidenote: Removal from homestead.]
Neither husband nor wife can remove the other, nor their children from
their homestead without his or her consent, and if he abandons her, she
is entitled to the custody of their minor children, unless the district
court, upon application for that purpose, shall, for good cause,
otherwise direct [§3406.]
[Sidenote: Conveyance of property.]
When either the husband or wife is insane, and incapable of executing a
deed, and relinquishing or conveying his or her right to the real
property of the other, the sane person may petition the district court
of the county where such petitioner resides, or of the county where said
real estate is situated, setting forth the facts and praying for an
order authorizing the applicant or some other person to execute a deed
of conveyance and thereby relinquish the interest of either in the real
property of the other [§3407.]
[Sidenote: Proceedings and decree.]
Upon such application the court has power to appoint some person or
attorney guardian of the person alleged to be insane, who shall
ascertain as to the propriety, good faith and necessity of the prayer of
the petitioner, and who shall have power to resist said application. If
the court is satisfied that the petition is made in good faith, and that
the petitioner is the proper person to exercise the power and make the
conveyance, and that such power is necessary and proper, said court
shall enter up a decree authorizing the execution of all such
conveyances, for and in the name of such husband or wife, by such person
as the court may appoint [§§3408-3409.]
[Sidenote: Appointment, Revocation.]
All deeds executed by the person thus appointed shall be valid in law,
and shall convey the interest of such insane person in the real estate
so conveyed; said power shall cease and become void as soon as he or she
shall become sane and of sound mind, and apply to the court to revoke
said power, and the same shall be evoked; but such revocation shall in
nowise affect conveyances previously made. [§3410.]