Wright v. Tichenor

• Decision Date: 10 December 1885
• Docket Number: 12,233
• Citation: 3 N.E. 853,104 Ind. 185
• Parties: Wright v. Tichenor
• Court: Indiana Supreme Court

3 N.E. 853

104 Ind. 185

Wright v. Tichenor

No. 12,233

Supreme Court of Indiana

December 10, 1885

From the Tipton Circuit Court.

Judgment reversed.

J. M Fippen, for appellant.

J. A Swoveland and J. I. Parker, for appellee.

OPINION

Elliott, J.

Exhibited in a condensed form, the facts stated in the special verdict are these: The appellant became the wife of Amasa P. Casler in September, 1848, and continued to sustain that relation to him until his death, on the 13th day of December, 1864; Amasa P. Casler became the owner of the land in controversy in 1850; on the 13th day of November, 1854, executions were issued upon judgments rendered against him, the land sold, and purchased by the remote grantor of the appellee.The deed under which the appellant's husband claimed title was never recorded, and was executed by Robert E. Davidson and wife.Possession of the land was taken by the purchaser at the sheriff's sale, and he and his grantees have since been continuously in possession under the deed executed by the sheriff and a quitclaim deed executed by Robert E. Davidson and wife.The appellant has never conveyed her interest in the land, nor joined in any conveyance of it.

The statute of limitations does not begin to run until the right of action accrues, and in the case of a claim to the possession of real estate, the right of action does not accrue until there is a right of entry.Prior to the act of 1875 the right of a married woman to recover her interest in the lands of her husband did not accrue until his death.Where, therefore, land was sold in 1854 upon an execution against the husband alone, the right of the wife to enter into possession of the land did not vest until the death of her husband.As against the title conveyed by the sheriff's deed, the right of the appellant did not vest until the death of her husband, on the 13th day of December, 1864, and as this action was brought within twenty years from that time, the statute of limitations did not bar her right to assert title against the rights and interests conveyed by the sheriff's deed.

A sale made upon a judgment rendered against the husband alone does not convey the interest of the wife; it is the interest of the husband, and not that of the wife, that is sold.Taylor v. Stockwell,66 Ind. 505, seep. 516;Pattison v. Smith,93 Ind. 447;DeArmond v. Preachers Aid Society,94 Ind. 59;Mansur v. Hinkson,94 Ind. 395;Richardson v. Schultz,98 Ind. 429.The interest of the appellant was, therefore, not sold or conveyed by the sheriff to the appellee's remote grantor.The sale by the sheriff did not profess to convey the title of the appellant, and the appellees can not have even color of title under the sheriff's deed, to the interest of the former in the land of her deceased husband.In legal effect he is a tenant in common with her, she owning one-third of the land and he the two-thirds of it.

The fact that the deed to the appellant's husband was unrecorded can not deprive her of her rights.Sutton v. Jervis,31 Ind. 265;Johnson v. Miller,47 Ind. 376(17 Am. R. 699).In Alexander v. Herbert,60 Ind. 184, it seems to have been held, without reference to our former decisions, or to any authorities, that the destruction of the deed executed to the husband extinguishes the rights of the wife as against a bona fide purchaser; but assuming this to be the correct rule, and grantiing that the earlier cases were erroneously decided, still, the rights of the appellant are not affected by the rule, for here there is no bona fide purchaser of her interest, and there is a claim through the husband.The title asserted upon the sheriff's deed is grounded upon the assumption that the land was the judgment debtor's, and, as such, subject to seizure and sale.The assertion of title through the sheriff's deed involves the assumption that the owner of the land was the appellant's husband, for the purchaser at a sheriff's sale necessarily asserts that the judgment debtor owned the property sold upon the judgment.In so far, therefore, as the appellee asserts title upon the sheriff's sale, he claims title through the same person through whom the appellant claims, and in doing so asserts title in that person.Wilson v. Peelle,78 Ind. 384;Bennett v. Gaddis,79 Ind. 347;Stockwell v. State,ex rel., 101 Ind. 1.As the parties both claim through the same source, the appellee, in so far as the right grounded on the sheriff's sale is concerned, can not successfully claim to be a bona fide purchaser, ignorant of the rights of the wife.He is, it is obvious, in a very different position from one who does not claim through the husband.

A purchaser at a sheriff's sale occupies substantially the same position as if he had purchased the property from the debtor at the same date as that on which the judgment was rendered.Orth v. Jennings,8 Blackf. 420;Doe v. Hall,2 Ind. 556.The purchaser gets all the interest in the land that the debtor had at the time the judgment was rendered, but he gets nothing more.Foltz v. Wert,103 Ind. 4042 N.E. 950.In this case, the purchaser at...