Frain v. Burgett
| Decision Date | 24 May 1898 |
| Docket Number | 18,343 |
| Citation | 50 N.E. 873,152 Ind. 55 |
| Parties | Frain et al. v. Burgett et al |
| Court | Indiana Supreme Court |
Rehearing Denied Dec. 30, 1898, Reported at: 152 Ind. 55 at 65.
From the White Circuit Court.
Reversed.
A. W Reynolds, A. K. Sills, Stewart T. McConnell and Albert G Jenkines, for appellants.
S. P. Baird, E. B. Sellers and W. E. Uhl, for appellees.
Appellants originally instituted this action by a complaint in six paragraphs, whereby they sought to redeem certain described lands from a mortgage executed to secure the purchase money thereof. A demurrer was sustained to the sixth paragraph of the complaint, and thereafter the plaintiffs dismissed all of the remaining paragraphs, and refused to plead further, and elected to stand by their sixth paragraph, and judgment was rendered in favor of the defendants, from which this appeal is prosecuted.
The action of the court in sustaining the demurrer to the paragraph in question is the only error of which appellants complain. The following are substantially the facts averred in the paragraph in dispute:
In July, 1852, the board of trustees of the Wabash & Erie Canal were the owners in fee simple of the lands described in the complaint, consisting of 320 acres, situated in White county, Indiana. On the 5th day of July, 1852, Austin M. Puett purchased this land from the said board of trustees and received a certificate of purchase for the same and entered into possession of the land, and thereafter paid the taxes thereon. In 1856, Puett, for a valuable consideration, sold the lands to Ashabel P. Willard and James G. Gwin, and assigned and delivered to them his certificate of purchase, and they went into possession of said real estate under said sale and transfer. On February 13, 1856, Willard, for a valuable consideration, sold and conveyed the real estate in question by general warranty deed to Gwyn, and put the latter in full possession thereof under said warranty deed. Gwin immediately made lasting and valuable improvements upon the land, and on the 1st day of April, 1856, he, it is averred, being still the owner in fee simple, and in possession of the real estate, sold and conveyed it by a warranty deed, in fee simple, for a valuable consideration, to one George Frain, and put said Frain in full possession thereof, and the said grantee made lasting and valuable improvements thereon. Said board of trustees did not execute a deed for said real estate until December 3, 1857, when, upon the payment of the purchase money for said land, said board, by deed, conveyed the legal title of said real estate to Gwin. The plaintiff Catharine Frain is the widow of George Frain, who died at White county in 1894. Prior to April 1, 1856, she became the wife of said Frain, and continued as such until his death. On October 3, 1857, one Miller recovered a judgment against the said George Frain in the White Circuit Court for $ 716.75, together with a foreclosure of the mortgage upon the said real estate. This mortgage was a purchase-money mortgage, and Mrs. Frain, the appellant, did not join her husband in the execution thereof, and was not made a party to the suit of foreclosure, and had no knowledge or notice of this suit until shortly before this action was commenced. On December 14, 1857, the real estate was sold by the sheriff under said decree of foreclosure to one Hays for $ 10, who, upon payment of his bid, received from the sheriff a deed for said land. It is averred in the complaint that the said George Frain was seized in fee simple of the said real estate while he and Catharine Frain were husband and wife, and that his said wife at no time joined her husband in the conveyance of said real estate. Through mesne conveyances from Hays and wife, appellees acquired all the right, title, and interest of Hays and his wife under said sheriff's deed in and to the real estate, and their respective interests are set forth in the complaint, and the value of the rents and profits is alleged. Since the death of George Frain, his widow has conveyed, as alleged, in fee simple, to her co-appellants herein, for a valuable consideration, the undivided one-sixth of said real estate, and that appellants, as it is alleged, now hold and own the same.
It is contended by counsel for appellants that these facts, considered as a whole, show that George Frain was seized in fee simple of the lands in controversy during his marriage with the appellant, Catharine Frain, and as it further appears that she never joined her husband in any manner in the conveyance of the real estate in dispute, therefore, at his death she became absolutely seized of the one-third interest which the statute awards her, subject to the purchase-money mortgage mentioned, and that by reason of these facts, and the further fact that she was not a party to the action of foreclosure, she is entitled to redeem. Appellees, however, insist that, from the facts, it is disclosed that appellant's husband was never seized, at any time during the coverture, with any other than the equitable title or estate in the land, and of this title, they claim, he is shown to have been devested before his death; hence appellant, Catharine Frain, as surviving wife, has no interest in the land.
Section 27 of the statute of descents in this State, being section 2491 R. S. 1881, section 2652 Burns 1894, provides as follows: "A surviving wife is entitled, except as in section 17 excepted, to one-third of all the real estate of which her husband may have been seized in fee simple at any time during the marriage, and in the conveyance of which she may not have joined, in due form of law, and also of all lands in which her husband had an equitable interest at the time of his death." Section 2499 R. S. 1881, section 2660 Burns 1894, provides: "No act or conveyance, performed or executed by the husband without the assent of his wife, evidenced by her acknowledgment thereof in the manner required by law; nor any sale, disposition, transfer or incumbrance of the husband's property, by virtue of any decree, execution or mortgage to which she shall not be party (except as provided otherwise in this act), shall prejudice or extinguish the right of the wife to her third of his lands, * * or preclude her from the recovery thereof, if otherwise entitled thereto."
This interest of the wife attaches as an incident to the seizin of the husband during the marriage, and no act or conveyance by the husband, nor charge in respect to the land, without the wife joining him therein, can serve to devest or extinguish her interest. Grissom v. Moore, 106 Ind. 296, 6 N.E. 629. As the husband can do nothing, by reason of this statute, that can affect the inchoate interest of the wife when it has once attached to the land, it is evident that if the real estate is sold and conveyed, either directly by himself or through the medium of an officer of the court, as in the case at bar, in satisfaction of a mortgage executed by the husband, the wife not joining, the purchaser takes under such sale nothing more than the interest or title of the husband, which does not embrace the inchoate interest of the wife. Hence it is taken and held by such purchaser subject to the interest of the wife, and if the mortgage be for purchase money, it is then held subject to her right to redeem in the manner and under the conditions provided by law. This court has held, and properly so, that, under our statutes the interest of the wife in the husband's real estate is not an encumbrance, but is an estate in the land. It is more than the right of dower as it formerly existed, for there is no reversionary interest in the party who claims through the husband. Bever v. North, 107 Ind. 544, 8 N.E. 576.
The principal question with which we have to deal in this case is: Can George Frain, the husband, under the facts, be said to have been seized in fee simple of the real estate at any time during his marriage? If so, then by reason of this fact taken in connection with the other facts alleged in the complaint, appellant would be entitled to the right of redemption which she seeks in this action. Barr v. Vanalstine, 120 Ind. 590, 22 N.E. 965; Brenner v. Quick, 88 Ind. 546. An estate in fee simple is the highest known to the law, and is defined to be one of absolute inheritance, free from any conditions, limitations, or restrictions as to particular heirs. Anderson's Law Dict., p. 451; 1 Bouvier's Law Dict., p. 649. It is true that seizin of the husband in fee simple in the land during the marriage is an essential prerequisite to the attaching of the wife's interest. However, in order that her interest may attach, the law does not require nor contemplate that an absolute seizin on the part of the husband during the coverture in all cases must exist. In Tiedeman on Real Prop., section 121, the author says: ...
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