Hatch v. Tipton

• Decision Date: 24 June 1936
• Docket Number: 25789.
• Citation: 2 N.E.2d 875,131 Ohio St. 364
• Parties: HATCH v. TIPTON et al.
• Court: Ohio Supreme Court

2 N.E.2d 875

131 Ohio St. 364

HATCH v. TIPTON et al.

No. 25789.

Supreme Court of Ohio.

June 24, 1936

Error to Court of Appeals, Franklin County.

Syllabus by the Court .

1. Section 10510-10, General Code, providing for the sale of the entire interest in real property by an executor or administrator of a deceased co-owner, where decedent owned an undivided interest therein, is constitutional and not in violation of section 28, article II, or section 19, article I, of the Ohio Constitution, or article XIV, amendments of the United States Constitution.

2. A right, not absolute but dependent for its existence upon the action or inaction of another, is not basic or vested, and deprivation thereof does not constitute a deprivation of property. A legislative enactment which interferes with or modifies the right to partition does not invade property rights and is not in derogation of the due process clause of the Constitution.

3. Where an action in partition has been instituted, following the death of a co-owner, and subsequent thereto the executor or administrator of such deceased co-owner institutes land sale proceedings under section 10510-10, General Code, the latter supersedes and prevails over the former.

This is an action involving the constitutionality of section 10510-10, General Code.

Five children, namely, Carrie A. Remaly, Charles C. Tipton, H Edward Tipton, Ethel Bellomy, and William A. Tipton inherited three parcels of their father's real estate. William A. Tipton mortgaged and later sold his undivided one-fifth interest in the real estate to Fred S. Hatch, now deceased. Edith V. Hatch, executrix under the last will and testament of Fred S. Hatch, deceased, instituted land sale proceedings in the probate court of Franklin county, in order to raise money with which to pay the debts of the estate and the allowances made to the widow.

In the petition the executrix asserts the right to sell the whole of the real estate, although decedent owned only a one-fifth interest therein.

The right thus asserted was pursuant to section 10510-10, General Code, which authorizes such procedure. A demurrer was filed to the petition, following the overruling of which answers were filed, wherein defendants contested the validity and constitutionality of the statute on the grounds: First, that it deprives them of their property in violation of article I, section 19, of the Constitution of Ohio; second, that it is retroactive in violation of article II, section 28, of the Constitution of Ohio; and, third, that it deprives them of their property in violation of article XIV, amendments of the Constitution of the United States.

The issue was decided adversely to defendants in probate court, which decision was reversed by the court of common pleas, and the reversal was affirmed by the Court of Appeals. The matter is now before this court on petition in error filed as of right.

Joseph A. Shearer, of Columbus, for plaintiff in error.

Sater & Sater, of Columbus, for defendants in error.

DAY, Justice.

The constitutionality of section 10510-10, General Code, is challenged on the grounds that it is retroactive and in violation of article II, section 28 of the Constitution of Ohio, that it deprives defendants of their property without due process of law, in violation of article XIV, amendments of the Constitution of the United States, and that it violates article I, section 19, of the Constitution of Ohio which provides that ‘ Private property shall ever be held inviolate.’

Section 10510-10, General Code, provides: ‘ When the interest of the decedent or ward in the real estate is fractional and undivided, the action shall include only such undivided fractional interest, except that (a) the executor, administrator or guardian, or (b) the owner or owners of any other fractional interest, or (c) any lien holder, may, by pleading duly filed in the cause, setting forth all interests in the property and liens thereon, require that the action include the entire interest in the property, and the owner or owners of said interests and liens shall receive their respective share or shares of the proceeds of sale after payment has been made of the costs and expenses of sale. The fees of the executor, administrator or guardian and of his attorney shall be a charge, as provided by law, only against such portion of the proceeds of sale as represents the interest of the decedent or ward.’

It is essential first to ascertain whether the right of which defendants claim to be divested is remedial or vested. If remedial, the fact that the enactment may be retroactive is immaterial. If vested and the legislation is retroactive, then we must determine whether defendants are deprived thereof without due process of law, as the constitutional inhibition against retroactive legislation is aimed to protect vested property rights.

The right of which defendants claim to be...