Western States Finance Co. v. Ruff

• Decision Date: 29 May 1923
• Parties: WESTERN STATES FINANCE CO. v. RUFF.
• Court: Oregon Supreme Court

215 P. 501

108 Or. 442

WESTERN STATES FINANCE CO. v. RUFF.

Supreme Court of Oregon

May 29, 1923

In Banc.

Appeal from Circuit Court, Hood River County; Fred W. Wilson, Judge.

Action by the Western States Finance Company against Fannie E. Ruff. Decree for defendant, and plaintiff appeals. Reversed, with directions.

S. S. Johnson, of Portland, for appellant.

Manning & Harvey, of Portland, for respondent.

McCOURT J.

Plaintiff commenced this suit against the defendant for the purpose of determining an adverse claim of the defendant to a parcel of real property in Hood River county. Plaintiff, in its complaint, alleged that it was then the owner in fee simple of the land referred to, and in the actual and exclusive possession thereof.

The answer of defendant admitted plaintiff's allegations of ownership and possession. As an affirmative defense, defendant alleged in substance that on the 22d day of January, 1921, and for a long time prior thereto, the defendant was a married woman and the wife of G. C. Ruff that during the marriage of defendant and G. C. Ruff, the latter was the owner of an undivided one-half interest in the real property in suit; that on the 18th day of November 1919, without the knowledge, consent, or acquiescence of defendant, and in fraud of her inchoate right of dower in said real property, G. C. Ruff, by a deed not signed or executed by defendant, conveyed the real property mentioned to W. R. Kaser; that on the 22d day of January, 1921, Kaser for the purpose of acquiring a deed from the defendant releasing her said inchoate right of dower, entered into a contract in writing with the defendant as follows:

"Whereas, heretofore G. C. Ruff, by proper instrument, conveyed unto W. R. Kaser, of Portland, Oregon, certain land by him owned in Hood River county, state of Oregon; and

"Whereas, the said G. C. Ruff was at the time said deed was made and is yet a married man, and his wife, under the laws of Oregon, has and holds a dower interest in and to said lands, which fact was known at the time of the transfer from the said G. C. Ruff to W. R. Kaser, and taken into consideration at the time; and

"Whereas, the said W. R. Kaser, as a holder of the legal title to said land, is desirous of obtaining the full fee-simple title thereto, and has agreed with the said Fannie E. Ruff upon a sum of money to be paid her for her said dower interest in and to said lands, which sum is the sum of three thousand ($3,000) dollars and is to be paid on or before two years from date hereof with interest at seven (7%) per cent. thereon payable annually:

"Now therefore, this agreement witnesseth:

"That the said Fannie E. Ruff of Portland, Oregon, first party, does in consideration of the sum of one ($1.00) dollar to her in hand paid, the receipt of which is hereby acknowledged, sell to, and the said W. R. Kaser of Portland, Oregon, the second party, does hereby purchase of and from the said Fannie E. Ruff, all her interest of, in and to the following described real estate, situated in Hood River county, state of Oregon, to wit: (Description of land), upon the following terms and conditions, to wit: She, the said Mrs. Fannie E. Ruff, does hereby, concurrently with the execution of this instrument, make, execute, acknowledge and deliver a warranty deed, conveying to the said W. R. Kaser all of her right, title and interest of, in and to the lands above described, which are also described on said deed, and said deed has upon it $3.00 in internal revenue stamps, covering the consideration for same; that said deed is, with this agreement, deposited with Andy Munger, in Multnomah county, state of Oregon, to be held until the said W. R. Kaser shall have, on or before two years from the date hereof, paid said Mrs. Fannie E. Ruff the sum of three thousand ($3,000.00) dollars, with interest thereon payable annually at the rate of seven (7%) per cent. per annum, and at the time when the said W. R. Kaser shall have made payment of said sum to the said Mrs. Fannie E. Ruff, or her representatives, then the deed deposited as aforesaid, with this agreement, is to be delivered to the said W. R. Kaser.

"It is further a condition of this agreement, that should the said W. R. Kaser, at any time during the period of two years covered hereby, desire to sell and convey his title to said lands above described, that such conveyance shall not be made or title transferred until the obligation to be paid hereunder is fully paid, satisfied and discharged. However, when said obligation is paid, whether by payment of cash by the said W. R. Kaser or upon sale of the lands covered hereby, then the said deed from the said Mrs. Fannie E. Ruff to the said W. R. Kaser shall be delivered to the said W. R. Kaser."

Defendant further alleged that the foregoing contract was executed and acknowledged by defendant and Kaser so as to entitle the same to be recorded, and the same was recorded in the records of deeds of Hood River county, on the 27th day of January, 1922; that concurrently with the execution of the foregoing contract defendant executed a warranty deed containing the usual covenants of warranty, purporting to convey to Kaser all her right, title, and interest in the real property, including dower and claim of dower, which deed was deposited in escrow with Andy Munger, in conformity with the requirements of the contract between defendant and Kaser; that on the 2d day of March, 1921, the defendant secured a divorce from her husband, G. C. Ruff; that thereafter on the 23d day of May, 1922, without the knowledge or consent of defendant, and without having paid her any part of the sum of $3,000 called for by the aforesaid contract, W. R. Kaser conveyed by deed to plaintiff all his estate in the lands in suit. Plaintiff received the aforesaid conveyance from W. R. Kaser, and the same was taken by plaintiff with notice and knowledge of the contract between defendant and Kaser.

Defendant averred that prior to the commencement of this suit, defendant demanded of Kaser and the plaintiff the sum of $3,000, with interest thereon as provided by the contract, and tendered the delivery of the deed deposited in escrow, as aforesaid, and that no part of said sum had been paid, and defendant now tenders a delivery of said deed into court.

Defendant prayed for relief as follows:

"(1) For a decree that the defendant has a lien on the said lands for the sum of $3,000 with interest thereon at 7 per cent. per annum from January 22, 1921.

"(2) That the Western States Finance Company be decreed to hold the hereinbefore described lands in trust for and subject to a lien in favor of the defendant for the sum of $3,000 with interest thereon from January 22, 1921, at 7 per cent. per annum, and that the defendant be decreed to have said lien on the said premises as of the date of the contract, Exhibit A.

"(3) For an order for the sale of said lands to pay the defendant the sum of $3,000 with interest thereon from January 22, 1921, at the rate of 7 per cent. per annum. * * *"

Plaintiff interposed a general demurrer to the affirmative defense of defendant, which was overruled by the court. Plaintiff declined to plead further, whereupon the court entered a decree in conformity with the prayer for relief contained in defendant's answer. Plaintiff appeals from that decree, and assigns the following errors:

"First. The court erred in overruling the appellant's demurrer to the respondent's further and separate answer.

"Second. The court erred in entering herein a decree in favor of the respondent, and against the appellant.

"Third. The court erred in refusing to grant a decree as prayed for in the complaint."

The inchoate right of dower is neither a title nor an estate in land, and is incapable of transfer by grant or conveyance; during its inchoate state, such right is an incumbrance upon the estate of the husband or his grantees, susceptible only of extinguishment. 19 C.J. 493, 494.

The separate deed of a married woman, given for the purpose of barring an inchoate right of dower in lands conveyed by her husband, does not pass any title. It operates only by way of estoppel or release. Such a deed, to be effective, must be executed to the grantee of the husband or to such grantee's heirs or assigns. An inchoate right of dower cannot be released to a stranger to the title. Section 10065 Or. L.; Reiff v. Horst, 55 Md. 42, 47; 19 C.J. 527.

By the terms of the contract between defendant and Kaser, the deed of the former to the latter, which was deposited in escrow, pursuant to that contract, was not to be delivered or to become operative until Kaser had fully performed his agreement to pay defendant $3,000 and interest. The deed so deposited in escrow by defendant was ineffectual to bar her inchoate right of dower until the performance of the conditions, or the happening of the event, upon which it was intended to be delivered to Kaser. Flanagan v. Great Central Land Co., 45 Or. 335, 340, 77 P. 485; May v. Emerson, 52 Or. 262, 96 P. 454, 1065, 16 Ann. Cas. 1129; Foulkes v. Sengstacken, 83 Or. 118, 128, 158 P. 952, 163 P. 311.

While she was yet the owner of her inchoate right of dower, notwithstanding her contract with Kaser and the deposit of the deed in escrow, defendant retained the title to that right as security for the payment of the price therefor, which Kaser agreed to pay her. May v. Emerson, supra.

The divorce which defendant applied for, and secured from G. C. Ruff, her husband, extinguished and barred defendant's inchoate right of dower in the lands in question, and deprived her of the right which the deed to Kaser was designed to release. Barrett v. Failing, 111 U.S. 523, 4 S.Ct. 598, 28 L.Ed. 505.

Assuming, without deciding, that the debt and obligation of...