Hoback v. Miller

• Citation: 29 S.E. 1014,44 W.Va. 635
• Court: Supreme Court of West Virginia
• Decision Date: 06 April 1898
• Parties: HOBACK . v. MILLER et al.

29 S.E. 1014

44 W.Va. 635

HOBACK .

v.MILLER et al.

Supreme Court of Appeals of West Virginia.

April 6, 1898.

Dowbb — Sale in Lieu —Equity—Lands op Infant—Bona Fide Purchaser.

1. A widow, merely on her right to dower, cannot file a bill to sell the heir's fee simple, and get money from its sale in lieu of dower in kind. A decree of sale in such case is void, — confers no title, —and is not merely erroneous.

2. Oourts of equity have no inherent power to sell the lands of infants, and can do so only as statutes enable them to do so.

3. A purchaser from a purchaser under a decree void for want of jurisdiction will not be regarded a bona fide purchaser without notice. He is bound to know the want of jurisdiction in the case.

(Syllabus by the Court.)

Appeal from circuit court, Cabell county; Thomas H. Harvey, Judge.

Suit by Henry Stanton Hoback, by his next friend, against Annie M. Miller and others, to set aside a decree of sale, and the sales made thereunder. There was a decree for plaintiff, and the Mutual German Savings & Loan Association, defendant, appeals. Affirmed.

J. B. Summerville and John B. Wilson, for appellant.

Williams, Scott & Lovett, for appellees.

BRANNON, P. In 1893 Annie M. Miller, solely under right to dower, as widow of her deceased husband, J. T. Hoback, In a lot of land in Huntington, filed her bill, making Henry Stanton Hoback (infant, and only heir of his father) defendant, and alleging that the land was not susceptible of partition or allotment without detriment to the property, and praying that her dower be assigned and set apart to her, and that, if the property was not susceptible of allotment of dower in kind, It be sold, and she be given a gross sum in lieu of dower in kind. Under a decree in said suit, the land was sold, and purchased by Mrs. Miller. Later she gave a deed of trust on the property to the Wheeling Title & Trust Company, to secure a loan made to her by the Mutual German Savings & Loan Association. A sale was made under this trust to said savings association. Still later, said infant, Henry Stanton Hoback, filed a bill to set aside said decree of sale, and the sale and deed of trust, and the sale under it; and, a decree having been rendered granting such relief, said savings and loan association appealed.

The briefs are very pointed, able, and helpful In the decision of the case. It is clear that an Infant, until six months after majority, may set aside a decree prejudicial to him, for mere error. Lafferty v. Lafferty, 42 W. Va. 783, 26 S. E. 262. As the sale Itself is attacked in this case, and title conferred by it on Mrs. Miller, and that conferred on third parties by her deed of trust, is sought to be annulled, we are led to Inquire whether the decree is not merely erroneous, but void. Mrs. Miller had right to file her bill for dower, and so far the court plainly had jurisdiction of the cause; but does that impart any virtue to the decree of sale? In other words, conceding that a widow, on her title to dower, cannot file a bill to sell the heir's land, and that a decree of sale in such a suit would be void, does the fact that the court had jurisdiction of the bill, as a suit to get dower, give any efficacy to the decree of sale, so as to render it merely erroneous, not void—mere irregular action in a case of clear jurisdiction, giving only wrong relief; not as if done in a case of no Jurisdiction? I conclude that it would not; that we must Inquire as to the act done, —the decree of sale, —viewed as if upon her bill to secure a sale only. Though having jurisdiction for one purpose, a decree for alternative relief cannot transcend the law applicable to the case. Windsor v. McVeigh, 93 U. S. 274. A widow entitled to dower is entitled, by the common law, to a part of the realty itself, to be set out by metes and bounds, or a particular room in a house; or, if insusceptible of such assignment, then every third toll dish in a mill, or occupancy for a third of the time, or third of the rent. 2 Minor, Inst. 159; 2 Scrib. Dower, p. 80, § 16. This is the rule of dower by common right, at the hands of the law. It follows that a widow has no sort of right to sue to sell forever from the heir the fee simple, that she may get satisfaction for her small estate out of the money. Having no right but to dower In kind, it is absurd to say that she can call upon the law to devest the child of his patrimonial estate. The common law, which gives birth to her right, contemplates no such thing. By common law, a widow is entitled to dower in kind in land owned by her husband during the wedlock, whether owned by him at his death, or sold during his life. Statute makes her take money dower, if the alienee desires, in lands sold by or from him during his life, but no statute gives her right to force a sale. Counsel for appellant cite White v. White, 16 Grat. 264, and Simmons v. Lyles, 27 Grat. 922, to the effect that if the property is insusceptible of assignment in kind, in a suit for partition, it may be sold, and she paid money In lieu of dower in kind, and would thence deduce the correlative right of the widow to force a sale upon the heirs; but, if those cases be correct, I know of none sustaining the widow's right to sell the freehold, out and out, to get money commutation for her dower. The common law warrants no such remedy to her. Nor can we base it on general principles of equity jurisdiction; for, there being no such right by common law, equity will not afford a remedy without right. There Is no right in equity to sell the lands of an infant, except so far as the statute enables equity to convert this land into money. The common law preserves his Inheritance until his majority, and ties his hands from its waste and sacrifice, by imposing disability upon him. Faulkner v. Davis, 18 Grat. 663; Bart. Ch. Prac. p. 551, § 170; 2 White & T. Lead. Cas. Eq. pt. 2, p. 1504. Mrs. Miller based her right to sue only on her dower right, and on it she could not ask a sale. Hull v. Hull's Heirs, 26 W. Va. 1, holds that she has no estate enabling her to sue to sell the heir's land, and have her dower paid in money. She cannot sue to sell for her husband's debt. These considerations show the decree of sale to be erroneous; but is it void? This is most material; for, if only erroneous, Code, c. 132, § 8, protects the title under the sale, as It says that, if a sale under decree be...