Briegel v. Briegel

• Decision Date: 23 November 1931
• Docket Number: 197
• Citation: 160 A. 581,307 Pa. 93
• Parties: Briegel, Appellant, v. Briegel et al
• Court: Pennsylvania Supreme Court

160 A. 581

307 Pa. 93

Briegel, Appellant, v. Briegel et al

No. 197

Supreme Court of Pennsylvania

November 23, 1931

Argued October 8, 1931

Appeal, No. 197, March T., 1931, by plaintiff, from decree of C.P. Allegheny Co., Jan. T., 1931, No. 3651, dismissing bill in equity, in case of Marie Briegel v. Anthony G. Briegel and the City of Pittsburgh. Affirmed.

Bill for injunction to prevent payment of award of damages to plaintiff's husband. Before REID, J.

The opinion of the Supreme Court states the facts.

Bill dismissed. Plaintiff appealed.

Error assigned, inter alia, was decree, quoting record.

Judgment affirmed at cost of appellant.

Morris M. Berger, of Levy, Crone & Berger, for appellant. -- Where a husband's land is condemned by a municipality under its eminent domain powers and an award for the total taking is made by the board of viewers, as between the husband and wife, and not in any way affecting the rights of the municipality, the wife is entitled to the same interest in the proceeds of the award as she had in the land, by virtue of her contingent dower interest: Arnold v. Ry., 32 Pa.Super. 452; Lazear v. Porter, 87 Pa. 513.

A person who contracts to purchase real estate is not bound to purchase that real estate whenever the vendor cannot convey the property free of the contingent interest of dower Deckert's App., 5 W. & S. 342; Reese v. Addams, 16 S. & R. 40; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411.

Artemas C. Leslie and Joseph P. Doherty, for appellee, were not heard.

Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.

OPINION

MR. JUSTICE KEPHART:

The City of Pittsburgh, in the exercise of the right of eminent domain, condemned land of Anthony Briegel, for which he was awarded $10,500. Briegel was married when the condemnation took place. His wife brought this bill against the city and her husband to have a portion of this fund set apart for her by virtue of her interest in lieu of her dower expectancy in the property. The award has been paid to a trustee pending the proceeding. Her husband denies her right to any part of the award, and the court below sustained his contention. The sole question before us is whether a fund raised through condemnation of a husband's land is subject to a claim by his wife by virtue of her contingent dower interest in the land?

The theory of eminent domain comes from the absolute right of the sovereign to take property for public use. All title interests must be included in the taking. It would be unthinkable that outstanding interests or rights in the land should remain in others after condemnation; to permit such interests to remain would materially interfere with the completion of the purposes for which the government, or those acting for it or in its right, have taken the property through eminent domain. It is, therefore, a matter of public policy that condemnation operates against all interests directly connected with the title of land, including all unrecorded equities or hidden interests indirectly connected with or growing out of such titles.

When the land is taken by condemnation, title passes from the owner immediately. Compensation, when not then paid but secured, may follow later through court proceedings. When land owned by a married man is taken under eminent domain, the husband is the only person who has any estate in the land which entitles him to be heard on the question of damages. A wife is not entitled to any compensation for her inchoate right of dower as she had no estate as such in the land: Arnold v. Buffalo, Rochester & Pittsburgh Ry. Co., 32 Pa.Super. 452, 459. As the State may alter statutes of distribution, the manner of making wills, or repeal all statutes relating to wills, and may, in its discretion, annul the common law right to dower (Melizet's App., 17 Pa. 449, 455), barring dower through eminent domain does not violate the Fourteenth Amendment of the Federal Constitution: Washburn on Real Property, book 1, page 220, section 37, page 229, section 230.

Is the inchoate right of dower such a lien or interest in the land that equity will impose an equitable lien on the fund? Appellant argues that, because dower is barred by eminent domain and is a thing of value, the interest it stands for should be safeguarded by the court by attaching or fastening a lien on the fund. This act, she says, would in no way affect the right of eminent domain as the contest would be between wife and husband. She further argues the money realized should be treated as real estate and not as personal property.

Undoubtedly, contingent dower is a thing of value (Mandel v. McClave, 46 Ohio 407); thus the release of such contingent interest is good consideration for a promise: Bullard v. Briggs, 7 Pick. (Mass.) 533; Holmes v. Winchester, 133 Mass. 140; Nichols v. Nichols, 136 Mass. 256. An inchoate right of dower has been held to be an encumbrance on the land (Shearer v. Ranger, 22 Pick. (Mass.) 447; Greiner v. Klein, 28 Mich. 12, 17), and may in a proper case be the subject of judicial protection: 19 C.J. 493. While dower, strictly speaking, is an interest in real property which the wife acquires in land of her husband by reason of marriage, the common law rule as to dower has been altered by statute, and our Act of June 7, 1917, P.L. 429, section 3, provides, "That the share allotted to the widow shall be in lieu and full satisfaction of her dower at common law, so far as relates to land of which the husband died seized." It further provides, "That her share in lands aliened by the husband in his lifetime, without her joining in the conveyance, shall be the same as her share in lands of which the husband died seized." In discussing dower, we refer to statutory dower; though the rules governing the question involved would apply alike to common law or statutory dower.

In the condemnation of lands for public purpose, liens, encumbrances or mortgages are divested as a matter of public policy, since it would be inconvenient, prejudicial to and destructive of the right of eminent domain to have such items remain as a charge on the property. Since the lien of a legacy, judgment, or mortgage against property taken by eminent domain is thus divested, it attaches forthwith to the fund realized from the land and the owner is regarded as a trustee for the benefit of others directly interested who are not necessarily parties to the proceedings. See Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 416, 418. We so held in Deckert's App., 5 W. & S. 342, though the insolvent owner of land condemned "had the legal right to receive the money from the company, and payment to him would have been a good payment without notice of the equitable interest." But although he was the owner of the land, yet, as respects legacies charged on the land, he was a trustee for others who had an equitable lien. The theory of equitable lien was created "under the head of preventive justice." Equity in that case would have restrained payment of the money to the owner, but the money was impounded so that the rights of claimants could not be destroyed by passing it on to the insolvent.

Inchoate dower is not such a lien, encumbrance or interest as will attach to a fund realized in condemnation of land. This has been held in many similar situations where the point arose, such as the sale of a husband's land for debt, and sale under partition where property cannot be divided. Lands are chattels for the payment of debts and may be subjected to the payment of a...