Butler v. Fitzgerald

• Decision Date: 02 January 1895
• Citation: 61 N.W. 640,43 Neb. 192
• Parties: BUTLER v. FITZGERALD ET AL.
• Court: Nebraska Supreme Court

43 Neb. 192

61 N.W. 640

BUTLER

v.FITZGERALD ET AL.

Supreme Court of Nebraska.

Jan. 2, 1895.

Syllabus by the Court.

1. The statute of this state, prescribing in what real estate of the husband a wife shall be entitled to dower, is but declaratory of the common law.

2. When lawful marriage of a man and woman and the ownership of real estate by the former concur, an inchoate dower right attaches, in the nature of a charge or incumbrance upon the real estate of the husband; and, when such right has once attached, it remains and continues a charge or incumbrance upon the real estate, unless released by the voluntary act of the wife, or be extinguished by operation of law, and is consummate upon the death of the husband.

3. The rule of caveat emptor applies to a purchaser of real estate at a judicial sale thereof on execution; and the conveyance made in pursuance thereof conveys no greater estate than would a quitclaim deed for the real estate, executed by the execution debtor.

4. The sale of the real estate of the husband under execution, on a judgment against him alone, followed by judicial confirmation and conveyance, does not extinguish the inchoate dower right of the wife in such real estate, and upon the death of the husband the wife is entitled to have her dower assigned out of such real estate.

5. Real estate which has been sold under execution on a judgment against the husband alone--such sale followed by judicial confirmation and conveyance--is real estate aliened by the husband, within the meaning of section 7, c. 23, Comp. St. 1893.

6. The phrase “enhanced in value,” found in section 7, c. 23, Comp. St. 1893, is limited in its meaning to appreciation in the value of real estate by reason of improvements put thereon by the alienee.

7. In estimating the value of real estate aliened by the husband during his marriage, for the purpose of assigning his widow dower therein, the value of the real estate is to be estimated as it is at the time of the assignment of dower, excluding the increase in value of the real estate resulting from improvements made thereon by the alienee subsequent to the date of alienation.

Appeal from district court, Lancaster county; Tibbets, Judge.

Action by Lydia Butler against John Fitzgerald and others to recover dower in land. Judgment was rendered for plaintiff, and defendants appeal. Affirmed.Marquett, Deweese & Hall and Abbott, Selleck & Lane, for appellants.

Stewart & Munger and Leese & Starling, for appellee.

RAGAN, C.

It appears, from a stipulation of the parties to this suit in the record, that the material facts in this case are: That Lydia Butler and David Butler were husband and wife, and resided, as such, in this state from the year 1866 until David Butler's death, in May, 1891, and that Lydia Butler still resides in this state; that on the 6th of October, 1879, David Butler was the owner in fee simple of certain real estate, which on said day was levied upon by an execution issued on a judgment obtained against David Butler alone, and sold to satisfy such judgment; that John Fitzgerald became the purchaser of said real estate at said execution sale, and said sale was followed by a judicial confirmation and conveyance to him of said real estate. Lydia Butler brought this suit to the district court of Lancaster county against John Fitzgerald and others, to recover her dower in said real estate, which had been sold and conveyed under execution as aforesaid. She had judgment, and John Fitzgerald and others interested in said real estate have appealed. The stipulation of facts referred to, and on which the case was tried in the court below, provides that, if the court shall find that Lydia Butler was entitled to dower in said real estate, the court shall ascertain the value of such dower interest, and render judgment therefor in her favor; that said Lydia Butler agrees to accept a gross sum of money in lieu of said dower.

The two important questions presented by this appeal are:

1. Does the sale of the real estate of a husband under execution, on a judgment against him alone,--followed by judicial confirmation and conveyance,--extinguish the dower interest of the widow of said husband in said real estate? Blackstone defines “dower” at common law thus: “ ‘Tenant in dower’ is where the husband of a woman is seised of an estate of inheritance and dies. In this case the wife shall have a third part of all the lands and tenements whereof he was seised at any time during the coverture, to hold for herself for the term of her natural life.” And he further says that the object of the common law in giving a widow dower in the estate of her husband was “to provide for the sustenance of the widow, and for the nurture and education of the younger children.” Bl. Comm. bk. 2, pp. 128, 129. Section 1, c. 23, p. 401, Comp. St. 1893, provides: “The widow of every deceased person shall be entitled to dower or the use, during her natural life, of one-third part of all the lands whereof her husband was seised, of all (an) estate of inheritance at any time during the marriage unless she is lawfully barred thereof.” It will be seen that our statute in the matter of a widow's dower follows the rule of the common law, or, more properly speaking, the statute is but declaratory of the common law. In Scribner on Dower (volume 2, p. 2, § 2) it is said: “It will be observed that this estate [dower] arises solely by operation of law, and not by force of any contract, expressed or implied, between the parties. It is the silent effect of the relation entered into by them, not as in itself incidental to that relation or as implied by the marriage contract, but merely as that contract calls into operation the positive institutions of the law.” And it was expressly held in Shearer v. Ranger, 22 Pick. 447, that “an inchoate right of dower is an existing incumbrance on land, within the meaning of the covenant against incumbrances.” However this may be, it is clear that, “when lawful marriage of a man and woman and the ownership of real estate by the former concur, an inchoate dower right attaches, in the nature of a charge or incumbrance upon the real estate of the husband.” Under certain conditions, unnecessary to notice here, the dower right may never attach; but when it has once attached it remains and continues a charge or incumbrance upon the real estate, unless released by the voluntary act of the wife or extinguished by operation of law, and is consummate upon the death of the husband, and in certain other contingencies not involved in this case, provided for by section 23 of chapter 25 of the Compiled Statutes, entitled “Divorce and Alimony.” In this case none of the conditions existed which prevented the inchoate dower right of Lydia Butler from attaching to the real estate of her husband owned by him at the time of his marriage to her, or acquired by him thereafter. The husband is dead; and we now proceed to inquire whether his widow, within the meaning of section 1, c. 23, quoted above, has been or is “lawfully barred” of a dower interest in the real estate in controversy. The rule of the common law as to the effect of a husband's acts during the coverture, on the dower interest of his wife in his real estate, is thus stated by Scribner on Dower (volume 1, p. 603, § 1): “After the right of dower has once attached, it is not in the power of the husband alone to defeat it by any act in the nature of an alienation or charge. It is a right attaching in law, which, although it may never become absolute,--as if the wife died in the lifetime of the husband,--yet, from the moment that the facts of marriage and seisin concur, it is so fixed on the land as to become a title paramount to that of any person claiming under the husband by subsequent act. The alienation of the husband, therefore, whether voluntary, as by deed or will, or involuntary, as by bankruptcy or otherwise, will confer no title on the alienee as against the wife in respect of her dower, but she will be entitled to recover against such alienee in the same manner as she would have recovered against the heir of the husband had the latter died seised.”

In the case at bar the real estate in controversy was not “aliened” by the husband, as that phrase is ordinarily understood. He was deprived of the title to this real estate involuntarily, and we may presume that the only act of his which led to his being deprived of his real estate by the law was his voluntarily contracting the debt made the basis of the judgment under which the real estate was sold. The decisions of the courts of last resort of the states in construing statutes like our own, and the decisions of the courts of last resort of the states whose statutes do not define dower, but follow the common-law rule, sustain the proposition quoted above from Scribner, as to the inability of a husband, by any voluntary act of his, to bar his wife's right of dower to his real estate after such right has once attached, either directly or indirectly. In Pifer v. Ward, 8 Blackf. 251, it was held that “if a mechanic's lien accrue after the employer's marriage, and the employer die after the accruing of the lien, the right of dower of the employer's widow will be paramount to the lien.” And in Bishop v. Boyle, 9 Ind. 169, it was held that “the widow's right of dower extends to and includes a house erected on land of her husband, and her claim is superior to a mechanic's lien for which the property was sold under a decree against the husband to enforce the lien.” The court said: “The wife's dower is a favorite of the law, not resting in contract or resulting from the marriage relation. Hers is the elder lien. The mechanic bestows his labor with a knowledge of her prior right to the real estate, and he knows that the house he is building, as brick is added to brick and nail after nail is driven, becomes real estate. He may protect himself by security, or not venture. She is...