Grissom v. Moore

• Decision Date: 23 April 1886
• Citation: 6 N.E. 629,106 Ind. 296
• Parties: Grissom and others v. Moore and others.
• Court: Indiana Supreme Court

106 Ind. 296

6 N.E. 629

Grissom and others

v.Moore and others.

Supreme Court of Indiana.

April 23, 1886.

Appeal from Hamilton circuit court.

Shirts & Fertig, for appellants.

Kane & Davis, for appellees.

Mitchell, J.

On the twenty-fifth day of January, 1865, Isaac Grissom was the owner of three vacant lots in the town of Cicero, in Hamilton county. He entered into a contract with John Martz, whereby it was agreed, in consideration that Martz would move the machinery of a certain flouring-mill owned by him into a mill building to be provided, he (Grissom) would erect such building on the lots owned by him, and convey to Martz an undivided one-half interest in the lots and building. It was further agreed that they should be thereafter equal owners in the lots and mill, and become partners in the milling business, using the lots and mill in their partnership business. The building was erected, the machinery moved into it, and the partnership business entered upon. In August, 1865, Grissom sold his interest in the partnership property, and he and his wife joined in the conveyance of an undivided one-half of the lots to Reitz, who became a partner with Martz in the business. By certain mesne conveyances of their respective interests the title of Reitz & Martz in the property has been acquired by Moore & Stehman, who are partners in conducting the milling business. The property has been in the possession of the respective owners, and has been used as partnership property continuously from the time the mill was erected and equipped. Grissom continued to live in the vicinity, and knew of the several transfers of the property. He never claimed any interest in it after his conveyance to Reitz, in 1865. In 1875 Grissom died intestate, without having conveyed to Martz, as he had agreed. He left surviving Margaret Grissom, his widow, who was his wife at the time the agreement was made with Martz, and other heirs, who are parties to this suit. Moore & Stehman brought this suit against the widow and heirs, alleging in their complaint that they were asserting an unfounded claim to an interest in the property. They asked to have their title quieted. The widow and heirs filed a cross-complaint, and asked to have the title to the undivided one-half quieted in them. The court below, having specially found the facts substantially as above recited, stated, as a conclusionof law, that the plaintiffs were entitled to have their title quieted against the defendants to the whole property.

Out of the facts found several questions arise- First, as to the rights of the widow. The husband having been, during the marriage, seized in fee-simple of the lots mentioned, and the wife never having joined in any conveyance of the undivided one-half, it is not perceived how her rights, as widow, have been defeated. It is beyond question that the interest of a surviving wife in the partnership real estate owned by a firm of which her deceased husband was a member, will be confined to what may remain of her husband's interest after the final adjustment of the affairs of the partnership. Huston v. Neil, 41 Ind. 504, and cases cited; Cobble v. Tomlinson, 50 Ind. 550. That principle is, however, not available in this case. The lots were the individual property of the husband prior to the agreement with Martz. Being thus seized of the property during marriage, he could not defeat the inchoate rights of his wife by an agreement to devote it to the purposes of a partnership, nor by any other agreements short of a conveyance in which she should join.

Section 2491, Rev. St. 1881, secures to the wife, at the death of her husband, one-third in fee-simple in all the real estate of which he may have been seized during the marriage, and in the conveyance of which she may not have joined in due form of law. Section 2499 provides that “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, * * * shall prejudice or extinguish the right of the wife to her third of his land,” etc. The inchoate right of the wife attaches as an incident to the seizin of the husband during marriage. It cannot be divested or defeated by any act or charge of the husband, nor otherwise, except in the manner above provided. It can only be barred by a conveyance in which she joins, or by some proceeding to which all estates are subject, such as the exercise of the power of eminent domain, and the like. Her interest in lands, thus owned and conveyed by the husband, in the conveyance of which she has not joined, becomes consummated on his death. It accrues by virtue of the marital relation. She does not take as heir in lands so conveyed. Rank v. Hanna, 6 Ind. 20;Verry v. Robinson, 25 Ind. 14;May v. Fletcher, 40 Ind. 575;Brannon v. May, 42 Ind. 92;Bowen v. Preston, 48 Ind. 367;Derry v. Derry, 74 Ind. 560;Hendrix v. McBeth, 87 Ind. 287;Mark v. Murphy, 76 Ind. 534. It is clear, therefore, that upon the death of her husband, Margaret Grissom became entitled to one-third in fee-simple in the undivided one-half of the lots.

The question still remains, did she take any interest in the improvements?

Under the agreement found by the court, Grissom contributed the lots and the building to the joint enterprise, and Martz the mill machinery. The several contributions were thus brought into the firm as stock or firm property. Substantially it became the capital stock of the firm, and as respects the partners, and those claiming through them, it was impressed with the character of partnership property. Roberts v. McCarty, 9 Ind. 16;Huston v. Neil, 41 Ind. 504;Clark's Appeal, 72 Pa. St. 142; Hiscock v. Phelps, 49 N. Y. 97; 2 Lindl. Partn. 652, and notes. Improvements made even on lands owned by one partner, if made...