Stauffer v. Kessler
| Decision Date | 19 April 1921 |
| Docket Number | 10,872 |
| Citation | 130 N.E. 651,81 Ind.App. 436 |
| Parties | STAUFFER ET AL. v. KESSLER |
| Court | Indiana Appellate Court |
Rehearing denied June 29, 1921.
Transfer denied April 25, 1924.
From Elkhart Circuit Court; James S. Drake, Judge.
Action by Owen L. Stauffer and others against Martin V. Kessler. From a judgment for defendant, the plaintiffs appeal.
Reversed.
Guy W Dausman, for appellants.
L. L. Burris, for appellee.
Suit by appellants against appellee for partition of certain real estate. Appellee, in addition to an answer in denial, filed a cross-complaint to quiet title and for partition, alleging that he was the owner of the fee in the undivided one-third part of the real estate, and of a life estate in the remaining two-thirds. To this cross-complaint, appellees filed a denial.
By a special finding, the court found the facts to be, in substance, as follows: On December 18, 1914, one Lydia E. Kessler, who at the time was the wife of appellee, died seized in fee simple of the real estate here in controversy, leaving as her only heirs at law appellee and appellants, the latter being her children by a former marriage. Thereafter, on December 22, 1914, appellants, by a quitclaim deed, conveyed the undivided two-thirds of said real estate to appellee. The deed contained the following provision:
That ever since the execution of the deed, appellee has been in possession of the real estate, the present value of the two-thirds part thereof for and during the life of appellee being $ 1,166.50; that the real estate cannot be divided without damage to the respective owners; and that in October, 1916, appellee was married to one Lillian Myers Miller, with whom he is still living as husband.
On these facts, the court stated its conclusions of law to be: (1) That appellee is the owner in fee simple, and in possession, of the undivided one-third part of the real estate, and is the owner of a life estate in the remaining two-thirds part thereof; (2) that appellants are the owners of the undivided two-thirds of the real estate in reversion, each being the owner of the undivided two-ninths part, subject to the life estate of appellee; (3) that the parties to the suit are entitled to partition; and (4) that the whole of the real estate shall be sold.
Exceptions to the conclusions of law present the only questions.
That appellee is the owner in fee, and entitled to possession, of the undivided one-third of the real estate sought to be partitioned, and that appellants are the owners of the fee of the remaining two-thirds thereof, are facts not controverted. The question involved in this appeal is whether or not, under the above facts as found by the court, appellee is the owner of a life estate in the two-thirds of the real estate, the fee of which is in appellants. It is evident that the trial court, in reaching the legal conclusion that appellee is the owner of the life estate in controversy, did so upon the theory that the above quoted provision of the deed must be construed as a condition in restraint of marriage; that, being a condition restraining marriage, it is void, and must be wholly disregarded. Such is the position now taken by appellee.
It is, of course, a well-settled general rule of law that contracts in restraint of marriage, being against public policy, are void. Appellants concede that the provision in the deed is a condition, and not a limitation; nor do appellants controvert the general rule that contracts in restraint of marriage are void, but they insist that this general rule has no application to second marriage.
Pomeroy in his excellent treatise on equity jurisprudence says: "It seems to be settled by an overwhelming weight of authority, that limitations and conditions, precedent or subsequent, tending to restrain the second marriage of women, are valid, and by the most recent decisions the same rule has been applied to the second marriages of men."
The trend of judicial decisions, both in this country and in England, sustains Pomeroy's statement. Bostick v. Blades (1882), 59 Md. 231, 43 Am. Rep. 548; Appleby v. Appleby (1907), 100 Minn. 408, 111 N.W. 305, 10 L.R.A. (N. S.) 590, 117
Am St. 709, 10 Ann. Cas. 563; Allen v. Jackson (1875), L. R. 1 Ch. Div. 399; Newton v. Marsden (1862), 2 J. & H. 356. The reason given by the courts is, that the rule as to first marriages has no substantial force when applied to second marriages; that a contract in restraint of a second marriage is a reasonable one, the prevention of which is not a matter of public concern. But it is suggested that whatever may be the law elsewhere, the Supreme Court of this state, in the case of Crawford v. Thompson (1883), 91 Ind. 266, 46 Am. Rep. 598, has laid down a contrary doctrine. An examination of the court's opinion in that case discloses that the controversy was as to the validity of a provision in a will by...
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