Strong v. Clem

• Decision Date: 23 May 1859
• Citation: 12 Ind. 30
• Parties: Strong v. Clem
• Court: Indiana Supreme Court

12 Ind. 30

Strong v. Clem

Supreme Court of Indiana

May 23, 1859

From the Kosciusko Court of Common Pleas.

The judgment is affirmed with costs.

B. F Claypool, for appellant.

OPINION

Perkins J.

Suit for partition of certain real estate. The suit is by Benjamin F. Strong against John Clem. The plaintiff alleges, in his complaint, that he is the owner in fee of one-third of the land in question, and that said Clem is the owner in fee of the other two-thirds.

The defendant answers that he is the owner in fee of the whole of said lands, and that the plaintiff is not the owner of one-third. The defendant alleges that in 1844 the land was owned by one Jones, a married man; and that, in the year aforesaid, Jones conveyed the land to one Parry, his wife not joining in the deed; that after the 6th of May, 1853, Jones died leaving his wife of 1844 surviving him; and that the said Mrs. Jones, since the death of her husband, has assigned her interest in the land to the plaintiff, by virtue of which assignment he claims one-third in fee of the land.

The plaintiff demurred to this answer; the Court overruled the demurrer; and final judgment was rendered against the plaintiff.

The first question arising in this case is, whether a dower interest accruing to the widow, in the real estate of her deceased husband, by virtue of the marriage, is assignable and we think it is. Upon the death of the husband, the previous inchoate right of the wife becomes consummate--a vested right, lying, it is true, in action, but still vested. It is a right, a chose in action, arising, not out of tort, but contract. Such rights of action, and such interests, were assignable in equity, at common law, so as to enable the assignee to recover upon them in a suit in his own name, in chancery but not at law. The assignment transferred the equitable, not the legal title. Kent says (4 Comm. 61), that "The widow cannot enter for her dower until it be assigned her, nor can she alien it, so as to enable the grantee to sue for it in his own name. It is a mere chose or right in action," &c. 1 Greenl. Cruise, p. 189. But, per Dewey, J., in Slaughter v. Foust, 4 Blackf. 379, "Choses in action, which, by the common law, are even unsusceptible of assignment so as to enable the assignee to maintain a suit at law upon them in his own name, are capable of being equitably transferred, so that the purchaser may resort to a Court of chancery for redress without the aid of the name of the assignor. No formality is necessary to effect this species of transfer; * * * a debt may be assigned in equity, by parol, as well as by writing."

And in Mitchell v. Winslow, 2 Story 630, where the doctrine of equitable assignments is learnedly examined, Mr. Justice Story says: "Court of equity do not, like Courts of law, confine themselves to the giving of effect to assignments of rights and interests, which are absolutely fixed and in esse. On the contrary, they support assignments, not only of choses in action, but of contingent interests and expectancies," &c. No good reason has been assigned for excepting consummate rights to dower. See the limitations upon the above proposition from Story in the well-considered case of Nicoll v. The New York, &c., Railroad Co., 12 N.Y. 121. See, also, Burrill on Assignments, 2d ed., p. 70; 3 Kern. 322; 2 id. 622. This right of the widow, then, being equitably assignable, may be enforced, under our present code, in the name of the assignee. For while our statute may not have enlarged the common-law right as to equitable assignments, it has invested the equitable assignee with the right to sue in his own name, as he might formerly in chancery. Strong v. Bragg, 7 Blackf. 62, cannot be reconciled with the view we have taken; but that case, rightly decided as one at law, was wrongly decided as a case in chancery. Todd v. Beatty, Wright (O.) 460.--1 Hilliard on Real Prop., 2d ed., pp. 164, 165.

The next question arising is, whether the widow had any interest in the land in question of which to make an assignment, and if so, what? It was not land of which her husband died seized; and were the law in this state as it wisely is in Vermont, New Hampshire, Tennessee, Georgia, Connecticut, Michigan, and several other states of the Union, that the interest of the wife attaches only to such land (see 1 Greenl. Cruise, p. 153), the case would be as simple as the law would be just, and this Court would never have been called upon to investigate it. But such is not the statute of this state. Our statute is, that the interest attaches to all lands owned by the husband during coverture, in the conveyance of which the wife has not joined.

The land in question was owned by the husband in 1844, a point of time during the coverture, was conveyed by him in that year and the wife did not join in the deed. And had the law, at the death of the husband, remained the same as it was when the land was conveyed, the widow would have been entitled to a life estate in one-third of the land--being a dower...