Haggerty v. Wagner

• Decision Date: 04 November 1897
• Citation: 48 N.E. 366,148 Ind. 625
• Parties: HAGGERTY v. WAGNER.
• Court: Indiana Supreme Court

148 Ind. 625

48 N.E. 366

HAGGERTY

v.WAGNER.

Supreme Court of Indiana.

Nov. 4, 1897.

Appeal from superior court, Marion county; J. L. McMasters, Judge.

Suit by Mary J. Wagner against Patrick Haggerty for partition of real estate and to quiet her title to the portion thereof alleged to belong to her. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Ayres & Jones and Caroline B. Hendricks, for appellant. T. E. Johnson, for appellee.

McCABE, J.

Appellee sued appellant in the superior court for partition of lots 16 and 17 in Hannaman's South addition to the city of Indianapolis, and to quiet her title to her alleged proportion thereof. The action was commenced May 3, 1894. The issues formed were submitted to and tried by the court, resulting in a special finding of facts, upon which the court stated conclusions of law favorable to the plaintiff. Judgment was rendered pursuant to the conclusions of law, in favor of the appellee. The conclusions of law are assigned for error.

The material facts found are, in substance, that appellee, Mary J. Wagner, and said Peter Wagner were married on November 22, 1855, in Clay county, Ind., where they lived together as husband and wife until May 11, 1887, when said Peter died intestate, leaving an estate of less than $5,000, and left surviving him said Mary J. as his widow, together with five children. At and prior to May 16, 1856, said Peter Wagner, the husband of appellee, was the owner in fee simple of an undivided interest in a tract of land of about six acres, situated in Marion county, Ind., out of which the lots in dispute have been carved. At said date he and some 10 other persons held the aforesaid tract, undivided, as tenants in common. On said May 16, 1856, proceedings for partition were instituted by said Peter Wagner and others of his co-tenants against the cotenant George Wagner in the common pleas court of said county. At the trial of that cause the land sought to be partitioned was found not to be susceptible of division, and the same was by the court ordered to be sold as an entirety, and David S. Beaty was appointed a commissioner to make the sale thereof; and in pursuance of such order he sold said real estate to William Smith, and executed to him a commissioner's deed for the same, which deed was approved by the court, and duly recorded, and the proceeds arising from the sale were paid to and divided among the parties to the action according to their respective shares and rights. The appellee, the wife of said Peter, at the time said former action for partition was commenced, was not in any manner made a party plaintiff or defendant to said action, nor did she join in any manner therein, neither was she notified of the pendency thereof, and had no knowledge of said partition proceedings until after the death of her said husband. She never joined her husband at any time in the conveyance of any part of said real estate, nor in any manner or form did she dispose of her inchoate interest therein by her own act. Through mesne conveyances from said Smith and his grantees, appellant, Patrick Haggerty, was seised by deed of conveyance of said lots 16 and 17. The conclusions of law are to the effect that appellee, Mary J. Wagner, is the owner in fee simple of an undivided one-third of her deceased husband's interest in said real estate, and that appellant, Patrick Haggerty, is the owner of the residue thereof.

The ground upon which the conclusion that appellee, Mary J. Wagner, is the owner of a moiety of the real estate in question is based, as we learn from appellee's brief and a written opinion filed by the learned judge of the trial court, is that, by failure to make her a party to the prior partition proceedings, her inchoate interest in said lands as the wife of Peter Wagner was not extinguished by the partition sale. The question thus raised is a new one in this court, the same never having been directly decided before, nor has the question ever previously been before or considered by this court. The question has been considered and decided by other courts of last resort under statutes somewhat similar to our own. Some of those courts have decided the question one way, and some the other. We therefore feel called upon to consider the question upon principle before reviewing the decisions. The question, primarily, is this: Is it necessary, in a partition suit between co-tenants, where one of the co-tenants has a wife living at the time the partition proceedings are had, to make such wife a party thereto in order to make such proceedings binding on her in case she outlives her husband, and becomes his surviving widow? The discussion has taken a wide range, involving a consideration of various statutes. Great stress is laid upon section 2652, Rev. St. 1894 (section 2491, Rev. St. 1881), which was in force at the time the prior partition proceedings took place. It provides, among other things, that “a surviving wife is entitled, except as in section seventeen 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.” The only exception in section 17 is in favor of creditors where the real estate exceeds in value $10,000, in which case the widow, as against such creditors, only takes one-fourth, instead of a third, and where such real estate exceeds in value $20,000 she takes, as against such creditors, one-fifth, instead of a third. These exceptions have no application to the facts in this case, and hence no bearing. The sweeping language that she is entitled to one-third of all real estate of which her husband may have been seised 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, is subject to exceptions not mentioned in the statute of descents, which arise out of other laws and the evident intent of the legislature. For instance, it has no force where the husband's title was devested before the section took effect. Taylor v. Sample, 51 Ind. 423. And where liens existed on the lands at the time the marriage took place, such liens may be enforced so as to extinguish her inchoate interest in the land, even though she do not join with her husband in any form of conveyance of the land. Armstrong v. McGlaughlin, 49 Ind. 370;Eiceman v. Finch, 79 Ind. 511. And the same is true where the lien existed at the time the husband became seised of the land. Kissell v. Eaton, 64 Ind. 248;Godfrey v. Craycraft, 81 Ind. 476;Vandevender v. Moore, 146 Ind. 44, 44 N. E. 3. And so it has been held by this court, and correctly, we think, that, where land was conveyed by its owner to another, so that other could mortgage it to the school fund to secure a loan for the benefit of the grantor, and then such grantee conveyed the land back to the grantor, without the wife of such first grantee joining in the conveyance, and afterwards he died, leaving his wife surviving him, she was not entitled, under this section, to any part of such land, though she came within the very letter of the statute, because, in analogy to the common-law inchoate right of dower, the seisin of the husband was only instantaneous, and hence insufficient to create the inchoate right. Johnson v. Plume, 77 Ind. 166. Again, where real estate is appropriated uponcompensation in the exercise of the power of eminent domain, or in case of the dedication of lands of the husband to public use in making highways, canals, railroads, streets, and the like, the inchoate right of dower, or its substitute, the inchoate right of the wife to one-third in fee simple in her husband's lands, is extinguished without her joining in any deed therefor, or being made a party thereto in any manner or form. Duncan v. City of Terre Haute, 85 Ind. 104;City of Indianapolis v. Kingsbury, 101 Ind. 200. In the first one of the two cases last cited above it is said, on pages 106 and 107, that: “The courts of this country seem to have uniformly held, when the question has come before them, that when lands are appropriated by the exercise of eminent domain, or, what is said to be equivalent to it, the dedication of lands to public use, the dower of the wife is defeated. Guynne v. City of Cincinnati, 3 Ohio, 24; Moore v. City of New York, affirmed in the court of appeals, 8 N. Y. 110;Jackson v. Edwards, 7 Paige, 386; 1 Scrib. Dower, pp. 550-555. Dillon, in his treatise on Municipal Corporations (2d Ed.) § 459, says: ‘As dower is not the result of contract, but is a positive legislative institution, it is constitutionally competent for the legislature to authorize lands to be taken by a municipal corporation for a market, street, or other public use upon an appraisement and payment of their value to the husband, the holder of the fee, and such taking and payment will confer an absolute title devested of any inchoate right of dower. Nor is a widow dowable in lands dedicated by her husband in his lifetime to the public, where the dedication is complete, or has been accepted and acted upon by the municipal authorities.’ Washburn, in treating of the various modes in which dower may be defeated, says: ‘One mode in which dower may be defeated remains to be mentioned, and that is, by the exercise of eminent domain during the life of the husband, or, what is equivalent to it, the dedication of land to the public use.’ In Moore v. City of New York, 4 Sandf. 456, the court, in speaking of a former decision, says: ‘We then held that the wife's right of dower was merely inchoate during the life of her husband, and that she had no vested or certain interest in his lands. The right being merely an incident to the marriage relation, it seems to us that, while this right is thus inchoate, and before it has become vested by the death of the husband, any regulation of it may be made by the legislature, though...