Whitsell v. Mills
| Decision Date | 30 May 1855 |
| Citation | 6 Ind. 184 |
| Parties | Whitsell and Others v. Mills |
| Court | Indiana Supreme Court |
From the Morgan Circuit Court.
The decree is reversed with costs. Cause remanded.
D McDonald, for appellants.
R. L Walpole, for appellee.
Sarah Mills, on the 22d of January, 1852, filed her bill of complaint, having for its object the recovery of dower in certain tracts of land situate in Morgan county. It is alleged that she is the widow of one Benjamin Mills deceased, who, during her coverture with him, was seized of said lands, and that the same are now owned by the appellants, who were the defendants below. The defendants answered, and filed a cross bill, to which the complainant filed her answer. The Court, upon a final hearing, decreed dower, &c.
From the pleadings and proofs, it appeared that the complainant's marriage with Benjamin Mills took place in December, 1824; that at the April term, 1832, he obtained in chancery in the Johnson Circuit Court, a decree against his wife, the said Sarah, for a divorce, on the ground that she had abandoned him without cause, and had refused to return; and that his death occurred in the year 1840.
This divorce, it is said, defeats the present claim for dower. It was granted under a statute of 1831, which, after providing for a bill, &c., enacts that the Court, there appearing just cause, &c., shall render a decree declaring the plaintiff released from the marriage contract to all intents and purposes, as though the same never had been solemnized. R. S. 1831, p. 214. And by a subsequent enactment, approved January 30, 1833, all divorces granted prior to that date were confirmed. Acts of 1833, p. 33.
The legal effect of this divorce is, no doubt, to be construed with reference to the law in force at the time the decree granting it was rendered. That decree, it must be conceded, dissolved the marriage tie then subsisting between Sarah Mills and her husband. It released the parties wholly from their matrimonial obligations, completely annulled the contract of marriage, and left them in the same position in which they stood prior to its existence. In technical language, the decree was a "divorce a vinculo matrimonii," and either party, upon its rendition, was at liberty to enter into a new marriage contract.
Was the complainant, then, entitled to dower in the lands whereof her husband was seized during the coverture and prior to the divorce? The act concerning dower in force when Mills died directs "that the widow of any descendant shall, in all cases," &c., "be endowed of one full and equal third part of the lands," &c., "the legal title to which vested in her husband," &c., "at any time during the coverture." R. S. 1838, p. 238. This is substantially the same as dower at common law. And "to the consummation of the title to such estate, three things are requisite, viz., marriage, seizin of the husband, and his death." 4 Kent's Comm., p. 35. It is true, the "husband was seized during the coverture;" but was she his widow? "One of the...
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