Spiro v. Robertson

• Decision Date: 19 November 1914
• Docket Number: No. 8457.,8457.
• Citation: 57 Ind.App. 229,106 N.E. 726
• Parties: SPIRO v. ROBERTSON.
• Court: Indiana Appellate Court

57 Ind.App. 229

106 N.E. 726

SPIRO

v.ROBERTSON.

No. 8457.

Appellate Court of Indiana, Division No. 1.

Nov. 19, 1914.

Appeal from Superior Court, St. Joseph County; Vernon W. Van Fleet, Judge.

Action by Samuel Spiro against George A. Robertson. From a judgment for defendant, plaintiff appeals. Affirmed.

Anderson, Parker, Crabill & Crumpacker, of South Bend, for appellant. Frank E. Osborn, Wm. A. McVey, and Lee L. Osborn, all of La Porte, and Romig & Miller, of South Bend, for appellee.

FELT, C. J.

This is a suit for possession of real estate. The only error assigned is the sustaining of appellee's demurrer for want of facts to appellant's complaint. The complaint is in one paragraph, and alleges, in substance, that plaintiff (appellant) is now the owner in fee simple of certain real estate, describing it, and of the buildings thereon; that on October 21, 1905, Calista S. Stover was the owner in fee simple of the real estate, and on that day executed a lease therefor to Robertson Bros. Company, for a stipulated rental of $1,800 per year, for the term of ten years from November 1, 1905, with the privilege of certain extensions up to five years; that said Calista S. Stover died testate on March 11, 1910, and her will was duly probated at St. Joseph county, Ind., and Robin Ernest Dunbar as executor of her said will on March 13, 1911, duly conveyed the real estate to Meyer Seeberger, who in turn and on the same day conveyed the real estate to plaintiff, Samuel Spiro; that each of said conveyances was made subject to said lease; that at the time the lease was executed Calista S. Stover was a married woman, the wife of one David Stover; that after plaintiff became the owner of said real estate, as aforesaid, on July 19, 1911, he caused to be served upon said Robertson Bros. Company a notice requiring said company to deliver up to him on November 1, 1911, the expiration of the current year of said tenancy, the possession of said premises; that thereafter, but at what time plaintiff cannot state for want of information, the defendant, George A. Robertson, received the possession of said premises from Robertson Bros. Company and now has and holds possession thereof; that such possession since the 1st day of November, 1911, has been, and is, unlawful and without right; that said George A. Robertson now wrongfully and unlawfully holds, and wrongfully keeps and still detains, the possession of said premises from the plaintiff -all to the plaintiff's damage in the sum of $700. Prayer for possession of the premises and for damages.

The memoranda accompanying the demurrer to the complaint is, in substance, as follows: (1) The complaint does not show or allege that any demand was made on defendant for possession of said real estate before filing of the complaint; (2) that it does not show or allege such facts as would entitle him to the advantage or benefit of the coverture of Calista S. Stover at the time of the execution of the lease mentioned in the complaint; (3) that it shows that plaintiff took his conveyance of said real estate subject to the lease set out in the complaint, and does not show or set out any facts which show that he should not be bound by it; and (4) it does not show or set out such facts as would show that the lease set out in the complaint is either void or invalid, or not binding upon him.

[1] Other defects, if any, are waived. Section 344, Burns' Statutes 1914; Stiles v. Hasler, 104 N. E. 878.

The complaint shows that the lease had been in force for six years at the date on which appellant sought by his notice to obtain possession of the leased premises. It also sets out the lease and shows appellee's possession of the premises in pursuance of its provisions. The demurrer therefore was evidently sustained on the theory that the complaint itself shows appellee's possession to have been lawful as against the claim of appellant. This presents the validity of said lease and of its binding effects on appellant to whom the real estate was conveyed subject thereto.

Appellant contends that the lease is void, because it was executed by a married woman without her husband joining in its execution, and in support of his contention cites sections 3947, 3992, and 7852, Burns' Statutes 1908 and 1914.

Section 3947 provides that:

“Conveyances of lands or of any interest therein, shall be, by deed in writing, subscribed, sealed, and duly acknowledged by the grantor or by his attorney, except bona fide leases for a term not exceeding three years.”

Section 3992 is as follows:

“All instruments of writing of and concerning lands, or concerning any interest therein, except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale and purchase of land, shall be deemed a conveyance within the provisions of this act, so far as such provisions apply to the acknowledgment or proof of the same, the recording thereof, and the force and effect of such recording.”

Section 7852 provides that:

“No lands of any married woman shall be liable for the debts of her husband; but such lands and the profits therefrom, shall be her separate property, as fully as if she were unmarried; provided, that such wife shall have no power to incumber or convey such lands, except by deed in which her husband shall join.”

Section 7853 provides that:

“A married woman may take, acquire and hold property, real or personal, *** and that the same, together with all the rents, issues, income and profits thereof, shall be and remain her own separate property, and under her own control, the same as if she were unmarried. *** She shall not enter into any executory contract to sell or convey or mortgage her real estate, nor shall she convey or mortgage the same, unless her husband join in such contract, conveyance or mortgage.”

Section 3963 also provides:

“That every lease of real estate for a longer period than three years shall be recorded in the miscellaneous record, in the recorder's office of the county in which such lands shall be situated, and every lease for a longer period than three years, not so recorded within forty-five days from the execution thereof, shall be void as against any subsequent purchaser, lessee, or mortgagee, in good faith, and for a valuable consideration.”

We are called upon to determine whether the lease in question was a conveyance of, or an incumbrance upon, the real estate within the meaning of the statute providing that a married woman shall have no power to incumber or convey her lands except by deed or mortgage in which her husband joins.

The question as presented here has not been decided in Indiana, and the decisions of the courts in other states having statutes similar to ours are divided upon the question. Some hold that she had such power and that to deny her the right to lease her property would be to nullify the statutes providing that the lands of a married woman, and the profits therefrom, shall be her separate property, as fully as if she were unmarried.

The leading cases supporting the right of the wife to lease her real estate without her husband joining in the execution of the instrument are as follows: Parent v. Callerand, 64 Ill. 97; Sullivan v. Barry, 46 N. J. Law, 1-5; Perkins v. Morse, 78 Me. 17, 2 Atl. 130, 57 Am. Rep. 780;Lyles v. Clements, 49 Ala. 445-448;Lockwood v. Middlesex, etc., Co., 47 Conn. 553-559;Vandervoort v. Gould, 36 N. Y. 639-642.

Among the decisions tending more or less to support the view that a lease is a conveyance or an incumbrance within the meaning of our statutes aforesaid, and that a lease of the wife's real estate in which her husband has not joined is either void or voidable, we cite the following: Buchanan v. Huzzard, 95 Pa. 240-243;Melley v. Casy, 99 Mass. 241;Dority v. Dority, 96 Tex. 215, 71 S. W. 950-952, 60 L. R. A. 941;Buren v. Hubbell, 54 Mo. App. 617-624.

It should be noted, however, that the decisions, above referred to, show conditions that impair their value as authority on the question here involved. In the Pennsylvania case the court was considering a deed which it was claimed ratified a lease previously made by the wife and in the execution of which the husband had not joined. In the Massachusetts and Texas cases the decisions are controlled by statutes which forbid the execution of a lease by a wife of her separate real estate for a longer period than one year without her husband joining in its execution. In the Missouri case the question arose over the alleged breach of a warranty against incumbrance based on a prior lease for 49 years of the coal under the land conveyed. Some decisions hold a lease to be an incumbrance in the sense that an existing lease on property conveyed constitutes a breach of the covenant in the deed against incumbrances. Clark v. Fisher, 54 Kan. 403, 38 Pac. 493-495;Fritz v. Pusey, 31 Minn. 368, 369, 18 N. W. 94.

[2] A “lease” of real estate is a contract by which, ordinarily, the owner divests himself of the possession and use of his property, in favor of the lessee, upon a valid consideration, for a definite term. Heywood v. Fulmer, 158 Ind. 658, 659, 32 N. E. 574, 18 L. R. A. 491;N. A. Oil & Mining Co. v. Troyer, 166 Ind. 402-410, 76 N. E. 253, 77 N. E. 739;N. Y. C. Ry. Co. v. Randall, 102 Ind. 453-457, 26 N. E. 122.

[3] A lease of real estate for years is “personal estate,” and passes to the personal representative of the lessee, upon his death intestate, and not to his heirs. Shipley v. Smith, 162 Ind. 526-528, 70 N. E. 803.

It has been held in this state that a wife may lease her separate property for a term of three years or less, without her husband joining in the lease, and that a parol lease for five years, made by a wife, of her real estate, without her husband's concurrence, may be enforced against the lessee holding possession thereunder for the collection of the rent stipulated in the parol agreement, rather than for the reasonable rental value of the...