51 Minn. 406 | Minn. | 1892
These were cross appeals from the same judgment. The facts were that, under and by virtue of an execution duly issued upon a judgment obtained by these defendants against one May I. Dayton, certain real property was levied upon and sold in January, 1891. These defendants became the purchasers at such execution sale, and there was no redemption. At the time of the rendition of the judgment the debtor was the wife of this plaintiff, and so remained until her death in June, 1891.
'In the case at bar, which was brought to have set aside and vacated both the judgment and the sale for reasons which need not be stated, and also to have determined the rights of the parties in the real property so -sold, the trial court refused to interfere with either the judgment or the sale, but did adjudge that the property passed to the defendants at the sale, subject to the inchoate and contingent right of the debtor’s husband, the plaintiff, under the provisions of the Probate Code, and that upon her death he became seised in fee of an undivided one third of the same. It is this feature of the
When speaking of this language In re Rausch, 35 Minn. 291, (28 N. W. Rep. 920,) it was said that the provisions of the statute for the widow in the real estate of her deceased husband were rather in the nature of an enlargement than an abolishment of dower, and that this inchoate right “is of the same general nature as inchoate right of dower at common law.” Although having reference to the rights of a surviving wife, these views are equally as pertinent and applicable to a ease like this, where the statutory rights of a surviving husband are being considered; hence his rights are analogous to, and of the same general nature as, inchoate right of dower at common law. It hardly seems necessary to cite authorities to the proposition that at common law a wife could not be deprived of her dower rights in the real estate of her husband through a sale upon
As section 64, supra, provides that the statutory interest in question shall be “subject, in its just proportion with the other real estate, to the payment of such debts of the deceased as are not paid from the personal estate,” it has been urged as a strong reason for adopting the views of defendants’ counsel that the creditor who neglects to prosecute his claim, and upon the decease of the debtor files the same in the probate court, has a lien upon the entire estate, and may have it sold to satisfy his claim, free from the statutory right or interest, thus having an advantage over the diligent creditor who procures a judgment and makes sale upon execution during the lifetime of the debtor; but this line of argument has no real merit. If title to real property has been divested during lifetime by sale on execution, it is evident that a general creditor has no enforceable claim
The issue of law which would have been raised if counsel had been allowed to interpose a demurrer to the amended answer was precisely the issue determined upon the trial in plaintiff’s favor, and which we have just held to have been correctly decided. There are several reasons why the court was justified in its ruling, but it is enough for us to say that the plaintiff was not prejudiced by it.
The ruling on plaintiff’s application for a continuance, based solely on the ground that the issue was not made until after the first day of the term, was correct. The pleadings were filed and served in strict accordance with a stipulation in which it was agreed that the case should be tried at the March term of the court, but not earlier than the 20th day of the month.
The contention that testimony should have been received as to an oral agreement between plaintiff and his wife that she should receive and hold the title to the property herein involved in trust for him has no merit. Conceding, even, that such testimony would have been admissible under any circumstances, it appeared from the testimony of the plaintiff himself, in immediate connection with the rulings by which this oral testimony was excluded, that the trust agreement had been reduced to writing, and counsel reserved the right to offer the instrument in evidence later on. It was not produced, nor
As to both parties the judgment is affirmed.
(Opinion published 53 N. W. Rep. 717.)