Long v. Long
| Citation | 124 N.E. 161,99 Ohio St. 330 |
| Decision Date | 02 April 1919 |
| Docket Number | 16025 |
| Parties | Long v. Long |
| Court | United States State Supreme Court of Ohio |
Appropriation of property - Parties - Holder of inchoate right of door - Right to participate in fund - Inchoate rights construed.
One having an inchoate right of dower is neither a proper or necessary party to an action in condemnation of real estate or any interest therein in the exercise of the power of eminent domain. (Weaver v. Gregg, 6 Ohio St. 547, approved and followed.)
Neither has such person any right to participate in the fund arising from Such condemnation proceedings, whether it be for land taken or for damages to the residue.
The right of such person is inchoate, and, therefore, wholly dependent under the laws of Ohio upon survivorship as to any and all property, real or personal.
Alexander Long and Rilla Long, husband and wife lived in Polk township, Crawford county, Ohio, on a farm, the fee of which was in Alexander Long. The C., C., C. & St. L. Railway Company brought an action in the probate court of said county to appropriate a part of said land for railroad purposes. The wife, Rilla Long, was not a party to said action. Such proceedings were had that damages were awarded in the sum of $3,410 for lands appropriated, and in the sum of $2,540 for injury to the residue, the total award being $5,950. Shortly thereafter Rilla Long commenced an action in the court of common pleas of Crawford county, asserting that she was entitled to a share of the $5,950, as the fair and reasonable value of her inchoate right of dower, claiming her right of action under favor of Section 11038 et seq., General Code.
Alexander Long, the defendant, demurred to said petition, which demurrer was overruled and exceptions noted. Upon answer duly made, and issues joined, the court of common pleas found the plaintiff entitled to an inchoate dower in both the compensation and damages in the total amount of $606. Upon appeal taken to the court of appeals this judgment was modified by reducing the sum to $585, for which amount final judgment was rendered.
Error is now prosecuted here to reverse that judgment.
Mr. W. J. Geer, for plaintiff in error. Mr. R. V. Sears, for defendant in error.
What property rights has the wife in the real property of the husband during the life of both, particularly while living together as husband and wife?
It is conceded that her property interests in her husband's real property are declared and defined by statute.
Section 8606, General Code, reads:
"A widow or widower who has not relinguished [relinquished] or been barred of it, shall be endowed of an estate for life in one-third of all the real property of which the deceased consort was seized as an estate of inheritance at any time during the marriage, in one-third of all the real property of which the deceased consort, at decease, held the fee simple in reversion or remainder, and in one-third of all the title or interest that the deceased consort had, at decease, in any real property held by article, bond, or other evidence of claim.
Section 8607, General Code, reads:
The universal rule is that the right of either husband or wife in the real property of the other, of which said other died seized, is conditioned solely upon survivorship. If the one claiming such interest die before the one seized of the fee, such death wholly extinguishes such interest. During the life of such consort such interest in realty is usually spoken of as "inchoate right." Inchoate right is defined by Bouvier - "that which is not yet completed or finished"- and the author states that: "During the husband's life, a wife has an inchoate right of dower," Citing 2 Blackstone, 130.
It is, in short, merely the beginning of a right that does not ripen unless the one possessing such right in the property of another shall survive.
Now, was the wife a necessary party in the condemnation proceedings had in the probate court of Crawford county? If she was, then by not being made a party her right in the property still exists, and, therefore, she would have no right in the fund. Her right cannot attach to both at the same time.
This question has never been squarely before this court in a condemnation case. However, the property rights of the wife in the real estate of the husband have been before this court in a partition case involving substantially the same question, that of Weaver v. Gregg, 6 Ohio St. 547. That was a case in partition in which the husband of plaintiff was seized as tenant in common of the one undivided fourth of certain lands. The wife of such tenant in common had the "inchoate right of dower." The question was, the wife not being a party to the action, did her "inchoate right of dower" pass to the purchaser at partition sale? Did the purchaser take the entire estate free from the right of dower?
The syllabus in that case reads as follows:
"A sale, under the act `to provide for the partition of real estate,' of an estate held in common, divests the wife of a co-tenant in fee of the estate of her inchoate right of dower therein, and passes the entire estate to the purchaser."
Judge Brinkerhoff in the opinion in this case uses the following language:
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Long v. Long
...99 Ohio St. 330124 N.E. 161LONGv.LONG.No. 16025.Supreme Court of Ohio.April 2, Error to Court of Appeals, Crawford County. Action by Rilla Long against Alexander Long. Judgment for plaintiff was modified by the Court of Appeals, and the case was brought to the Supreme Court on error. Revers......