Rieger v. Harrington

• Decision Date: 17 January 1922
• Parties: RIEGER v. HARRINGTON.
• Court: Oregon Supreme Court

203 P. 576

102 Or. 603

RIEGER v. HARRINGTON.

Supreme Court of Oregon

January 17, 1922

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by C. R. Rieger against Anita L. Harrington. Judgment for defendant, and plaintiff appeals. Affirmed.

The record in this case discloses that on March 1, 1898, C. R Rieger, plaintiff herein, was a married man, residing in Multnomah county, Or.; that he was the owner in fee simple of the south half of lot numbered 7 in block numbered 117, in East Portland, now within the corporate limits of the city of Portland, and that on that date he executed and delivered to his wife a warranty deed, conveying to her the fee-simple title to the following described property:

"All of the south one-half of lot numbered 7 in block numbered 117, East Portland, now a part of the city of Portland, in above county and state, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, and also all my estate, right, title and interest in and to same, including dower and claims of dower. To have and to hold the above-described and granted premises unto the said Mrs. E C. Rieger, her heirs and assigns forever.

"And C. R. Rieger, grantor above named, does covenant to and with Mrs. E. C. Rieger, the above-named grantee, her heirs and assigns, that he is lawfully seized in fee simple of the above-granted premises; that the abovegranted premises are free from all incumbrances except a certain mortgage for $1,200.00, * * * and that he will, and his heirs executors and administrators shall, warrant and forever defend the above-granted premises, and every part thereof against the lawful claims and demands of all persons whomsoever."

This deed was received for record on June 8, 1898. The plaintiff has not been a resident or inhabitant of the state of Oregon since his departure therefrom in the year 1908. On June 14, 1909, Mrs. E. C. Rieger, by her attorney in fact, executed and delivered to Anita L. Harrington, defendant herein, a warranty deed reciting:

"That E. C. Rieger, of the state of Oregon, in consideration of $2,500.00 to her paid by Anita L. Harrington, of Portland, state of Oregon, has bargained and sold, and by these presents does grant, bargain, sell and convey, unto the said Anita L. Harrington, her heirs and assigns, * * * all of the south one-half of lot numbered 7 in block numbered 117 in East Portland, now within the corporate limits of the city of Portland, together with all and singular the tenements, hereditaments and appurtenances hereunto belonging, or in any wise appertaining, and also all her estate, right, title and interest in and to the same. * * * To have and to hold the above-described and granted premises unto the said Anita L. Harrington, her heirs and assigns forever. And * * * grantor above named does covenant to and with Anita L. Harrington, the * * * grantee, her heirs and assigns, that the above-granted premises are free from all incumbrances, and that she will, and her heirs, executors and administrators shall, warrant and defend the abovegranted premises, and every part and parcel thereof, against the lawful claims and demands of all persons whomsoever."

Mrs. Rieger, grantor in the last-named deed, died on December 20, 1918. Her widower, plaintiff herein, instituted this suit against Anita L. Harrington for the purpose of having admeasured his alleged curtesy right of an estate for his natural life, in one-half of the real property conveyed to the defendant, Mrs. Anita L. Harrington, praying that the property be partitioned or sold, also for an accounting with the defendant for the rents and profits retained by her since the time of the vesting of appellant's alleged curtesy right. As a conclusion of law, and based upon the facts, the court found that plaintiff was not entitled to an estate of curtesy in the real property above described, by reason of the fact that he was a nonresident of the state of Oregon at the time of the death of his wife, and ordered, adjudged, and decreed "that the plaintiff has no right, title, interest, or estate in the above-described lands." Plaintiff alleges error on the face of the record, in this:

"That the court erred in decreeing that plaintiff has no right, title, interest, or estate in the real property described in the decree and complaint; in entering a decree that defendant was the owner of such real property, free and clear of any claim or right of the plaintiff; in not making and entering a decree adjudging and decreeing that the plaintiff was the owner by curtesy of an estate for his natural life, of one-half of said real property, and in not making and entering a decree admeasuring said curtesy right and partitioning said property or ordering sale of same, as prayed for in plaintiff's complaint."

Frank Schlegel, of Portland, for appellant.

Frank S. Senn, of Portland, for respondent.

BROWN, J. (after stating the facts as above).

The question presented is whether plaintiff, a nonresident of the state of Oregon, is entitled to an estate by the curtesy in the lands of his deceased wife of which she was not seized at the time of her death, but had conveyed some years prior thereto.

In an action to establish the right of tenancy by the curtesy, the burden is on the husband to show the existence of the facts entitling him to the curtesy 17 C.J. § 61, p. 436.

"The origin of the estate by the curtesy, although very ancient, is involved in obscurity; nor is there any principle to which by consent it is referable. * * * It is quite important to know the reasons which prompted the introduction of tenancy by the curtesy into the common law in order to determine the intent of subsequent legislation in continuing, modifying, or destroying it; but unfortunately there is no consensus of judicial opinion as to the reasons which gave rise to its introduction into the English system. It has been said by an English jurist that it has no moral foundation to support it, and an American court has characterized it as an estate which exists simply because 'ita lex scripta est.' A noted English writer says the custom sprang from favor to the husband, rather than from any right. * * * In the United States curtesy was introduced as a part of the common law, but it has been abolished, or modified by statute, in many of the states." 17 C.J. § 2, p. 414.

The Legislature has the right by statute to declare what interest a husband, during the life and after the death of his wife, shall have in her real estate situate within the state of Oregon. This state is empowered to regulate the tenure of real property within its limits, the modes of its acquisition and transfer, the rules of its descent, and to declare the dower or curtesy interest, if any, of a wife or husband in the real property of the other. United States v. Fox, 94 U.S. 315, 24 L.Ed. 192; Cope v. Cope, 137 U.S. 682, 11 S.Ct. 222, 34 L.Ed. 832; Buffington v. Grosvenor, 46 Kan. 730, 27 P. 137, 13 L. R. A. 282; Conner v. Elliot, 59 U.S. (18 How.) 591, 15 L.Ed. 497; Bennett v. Harms, 51 Wis. 251, 8 N.W. 222; Ligare v. Semple, 32 Mich. 438; Thornburn v. Doscher (C. C.) 32 F. 811, 13 Sawy. 60.

Rieger, plaintiff herein, asserts that the lower court based its decision upon the point that he was a nonresident of the state of Oregon at the time of the death of his wife, the court being of the opinion that the decision in Thornburn v. Doscher (C. C.) 32 F. 811, 13 Sawy. 60, was a correct construction of section 10073, Or. L., and that under section 10082 thereof the rule was made applicable to the right of curtesy. Plaintiff takes issue with this construction. It follows that the disposition of this case rests upon the interpretation to be given section 10073, Or. L., reading:

"A woman being an alien shall not on that account be barred of her dower; and any woman residing out of the state shall be entitled to dower of the lands of her deceased husband lying in this state of which her husband died seised, and the same may be assigned to her, or recovered by her, in like manner as if she and her deceased husband had been residents within the state at the time of his death."

And to section 10082, reading, in part:

"* * * Estates by the curtesy may be admeasured, assigned and barred in the same manner that dower may be admeasured, assigned and barred; and, as far as practicable, all other laws of this state applicable to dower shall be applicable, in like manner and with like effect, to estates by the curtesy."

In reference to section 10073, Mr. Justice Rand speaking for this court in Woolsey v. Draper, 201 P. 730, 732, said:

"This section was under consideration by this court in Cunningham v. Friendly, 70 Or. 222, 139 P. 928, 140 P. 989, and it was there held that a woman residing out of the state shall be entitled to dower in lands only of which her husband died seised, citing in support thereof Thornburn v. Doscher.''

In the Cunningham Case, 70 Or. 222, 139 P. 928, 140 P. 989, it was held that under the provisions of the statute as construed by this court, the wife, being a nonresident of the state, had no right of dower in the lands involved, and, having no interest therein, was not a necessary party to a partition suit.

Section 10073, Or. L., was copied from the Revised Statutes of Michigan of 1846 (chapter 66). In fact, the Oregon statute relating to estates in dower was taken from Michigan. The Michigan act relating to dower and curtesy is entitled:

"An act relating to estates in dower, by the curtesy, and general provisions concerning real estate."

Very early in the history of Oregon Territory, dower and curtesy rights were defined by the Legislative Assembly. The...