HUSBAND AND WIFE
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. [Se.] 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.
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 [Se].
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
[Se]. 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.”
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. [Se.] 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.
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. [Se.]
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.
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 [Se.]
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.
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 [Se.] 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.
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.
[Se.] 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.
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. [Se.]
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.
[Se.]
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. [Se.] 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.
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. [Se.] 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.
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 [Se.]
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.
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 [Se.] 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.
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. [Se.] 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.
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 [Se.]
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 [Se.]
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 [Sec.Se-3409.]
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. [Se.]