Weidler v. Floran
| Decision Date | 08 March 1938 |
| Docket Number | 15595. |
| Parties | WEIDLER v. FLORAN et al. |
| Court | Indiana Appellate Court |
Seebirt Oare, Deahl & Omacht and Carl Weidler, all of South Bend for appellant.
Shively & Arnold, of South Bend, for appellees.
On October 1, 1919, appellant, Maude Weidler, and her husband Charles Weidler, executed a mortgage to Etta B. Chamberlain upon certain real estate in St. Joseph county, Ind., as security for the payment of a promissory note in the principal sum of $1,500. On the 5th day of May, 1921 appellant and her husband executed and delivered a warranty deed conveying the same real estate to appellee Minnie Floran. On May 5, 1925, appellee Floran conveyed by warranty deed said real estate to appellees Delbert R. Kline and Annabelle Kline. Charles Weidler, husband of appellant, died testate on December 12, 1928, without having discharged the indebtedness secured by the mortgage given to Chamberlain. Thereafter, Etta Chamberlain foreclosed her mortgage in a proceeding wherein the appellees and appellant were made defendants. During the pendency of this foreclosure proceeding appellees filed a cross-complaint in one paragraph against appellant for damages for breach of covenant contained in the deed of conveyance from appellant and her husband to appellee Floran. Appellant answered the cross-complaint by a general denial. A trial by the court without a jury resulted in a finding and judgment against appellant and in favor of appellees upon their cross-complaint. In due time appellant filed her motion for a new trial, asserting as causes therefor that the decision of the court is contrary to law and is not sustained by sufficient evidence. This motion was overruled, and this appeal followed. The only error assigned for reversal is the ruling on said motion.
The evidence consisted of a stipulation of facts, the substance of which discloses that on May 5, 1921, Charles Weidler, then in life, was the owner in fee simple of the real estate described in the cross-complaint, and that on said date Charles Weidler and Maude Weidler, his wife, executed a deed of conveyance containing covenants of general warranty to appellee Minnie Floran; that Maude Weidler received no part of the consideration for said conveyance; that without any knowledge of any incumbrance upon said real estate appellee Floran, on the 5th day of May, 1925, conveyed said real estate by her warranty deed to appellees Delbert R. Kline and Annabelle Kline, husband and wife; that Charles Weidler and appellant, Maude Weidler, executed a mortgage on said real estate to Etta B. Chamberlain on October 3, 1919, which mortgage remained a subsisting incumbrance until foreclosed by judicial decree on February 2, 1933; that Charles Weidler died testate on the 11th day of December, 1928; and that the amount of the incumbrance on said real estate by reason of said mortgage and the foreclosure thereof was the amount fixed in the decree of foreclosure.
Appellant contends that under the facts as disclosed by the record she joined her husband in the execution of the warranty deed in question for the sole purpose of releasing her inchoate statutory right of dower and, in so doing, having received no part of the consideration therefor, she is not liable on the covenant of warranty contained in said deed.
Appellees insist that the evidence is silent as to what appellant's purpose was in subscribing the deed. We do not agree with appellees. In this case there are no facts indicating that appellant joined with her husband in the execution of the deed for any purpose other than to release her inchoate right of dower. In the absence of any evidence to the contrary, the fact that appellant joined her husband in the execution of a deed conveying his separate real estate, having received no part of the consideration therefor, in view of the statute of our state requiring the signature of a wife to a conveyance of the husband's realty to extinguish her inchoate statutory right of dower, gives rise to the presumption that she signed for that purpose to the exclusion of all others.
The principal question is whether or not a wife is liable on a covenant of warranty in a deed of conveyance in joining in the execution of the deed conveying the separate real estate of her husband, having subscribed for the sole purpose of releasing her inchoate statutory right of dower.
To answer this question we must look to the statutes as they existed at the time of the execution of the deed (May 5, 1921).
Section 6-2325, Burns' 1933, section 3325, Baldwin's Ind.St.1934, secures to the wife, at the death of her husband (except as provided in section 17, Burns' 1933, § 6-2313, section 3312, Baldwin's Ind.St.1934), one-third in fee simple in all the real estate of which he may have been seized during the marriage and in the conveyance of which she may not have joined in due form of law.
Section 6-2341, Burns' 1933, Section 3333, Baldwin's Ind.St.1934, provides that: "No act or conveyance, performed or executed by the husband without the assent of his wife, evidenced by her acknowledgment thereof in the manner required by law, * * * shall prejudice or extinguish the right of the wife to her third of his lands," etc.
The inchoate right of the wife attaches as an incident to the seizin of the husband during marriage. It cannot be divested or defeated by any act or charge of the husband, nor otherwise, except in the manner above provided. It can only by barred by a conveyance in which she joins or by some proceeding to which all estates are subject, such as the exercise of the power of eminent domain, and the like. Her interest in lands thus owned and conveyed by the husband, in the conveyance of which she has not joined, becomes consummate on his death. It accrues by virtue of the marital relation. She does not take as heir in lands so conveyed. Grissom et al. v. Moore et al., 1886, 106 Ind. 296, 6 N.E. 629, 55 Am.Rep. 742; Rank v. Hanna, 1854, 6 Ind. 20; Verry v. Robinson, 1865, 25 Ind. 14, 87 Am.Dec. 346; May
v. Fletcher, 1872, 40 Ind. 575; Brannon v. May, 1873, 42 Ind. 92; Bowen v. Preston, 1874, 48 Ind. 367; Derry v. Derry, 1881, 74 Ind. 560; Mark v. Murphy, 1881, 76 Ind. 534; Hendrix v. McBeth, 1882, 87 Ind. 287.
The wife's right to dower exists only as an incident to her marital status, and cannot be converted into an independent title. She cannot convey her inchoate right of dower to a third party, nor release it directly to her husband. The interest a wife has in her husband's lands while he is yet living is of such an intangible nature as that it cannot be conveyed either by her deed or by the joint deed of herself and husband; the latter retaining his interest in the lands. Buckel v. Auer, 1918, 68 Ind.App. 320, 120 N.E. 437.
It therefore follows that the settled theory of the law in our state, as to the nature of an inchoate right of dower, is that it is not an estate or interest in land at all, but is a contingent claim arising, not out of contract, but as an institution of law, constituting a mere chose in action, incapable of transfer by grant or conveyance, but susceptible of extinguishment only during its inchoate state. By force of our statute an extinguishment is effected by the act of the wife in joining with her husband in the execution of the deed to the land. The joinder by a married woman with her husband in a deed or mortgage of his lands does not operate as to her by way of passing an estate, but inures simply as a release to the grantee of the husband of her future contingent right of dower in the granted or mortgaged premises, in aid of the title or interest conveyed by his deed or mortgage.
It can hardly be said that the act of the wife in joining her husband in the execution of a deed in his lands for the sole purpose of releasing her inchoate right constitutes her a grantor of the premises or vests in the grantee any greater or other estate than such as is derived from the conveyance of the husband. As was said in the case of Snoddy v Leavitt, 1886, 105 Ind. 357, 361, 5 N.E. 13, 15: ...
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