Roth v. Roth

• Decision Date: 18 January 1924
• Citation: 125 A. 400,144 Md. 553
• Parties: ROTH v. ROTH.
• Court: Maryland Court of Appeals

125 A. 400

144 Md. 553

ROTH v. ROTH.

Court of Appeals of Maryland

January 18, 1924

Appeal from Circuit Court of Baltimore City; Duffy, Judge.

Bill by Louis J. Roth against Ida B. Roth. From an order and decree sustaining defendant's demurrer and dismissing the bill plaintiff appeals. Affirmed.

See also, 143 Md. 142, 122 A. 34.

Argued before BOYD, C.J., and THOMAS, PATTISON, URNER, ADKINS, and OFFUTT, JJ.

William W. Powell, of Baltimore (Louis J. Roth, of Baltimore, on the brief), for appellant.

David Ash, of Baltimore, for appellee.

URNER J.

The bill of complaint in this case was filed by a husband who is separated from his wife, and its purpose is to have a lot of ground, of which he is the owner, sold free of his wife's inchoate right of dower. It is alleged in the bill that such a sale would be advantageous to the parties interested. The specific prayer of the bill is that a decree be passed appointing a trustee for the dower interest of the defendant and directing the trustee to join with the plaintiff in a sale of the property and to invest one-third of the proceeds for the benefit of the plaintiff during his life, or so long as he continues to be the husband of the defendant, and to be paid to him, discharged of the trust if he survives the defendant, or they become absolutely divorced, and to be paid to the defendant in the event of her survivorship as the plaintiff's widow. A demurrer to the bill was sustained.

It is clear that a court of equity has no jurisdiction to decree such a sale as the bill proposed. The Code provision (article 16, § 228), by which the proceeding is sought to be supported, is not available for that purpose. It provides under certain conditions, for the sale of property and the investment of the proceeds, when there exist, under separate ownership, "an estate for life or years," or "an estate tail, fee simple, conditional, base or qualified fee, or any other particular, limited or conditional estate," and also "a remainder or remainders, vested or contingent, or an executory devise or devises, or any other interest, vested or contingent in the same land." An inchoate right of dower is not within the scope of those terms. It is not an interest which may be the subject of such ownership or disposition as the statute contemplates. It inures to the wife solely by virtue of the husband's seisin, and has no existence independently of his title. It may be extinguished by release, but is not susceptible of being sold or transferred. These principles of the law of dower have been repeatedly...