17 Iowa 517 | Iowa | 1864
The time of the marriage of plaintiff to the-decedent is not stated, but it is averred and conceded that the husband was seized in fee of the lands during the marriage, and prior to the sale under the execution.
At the time of the sale, the widow was entitled to dower as at common law. By the Code of 1851, § 1894, it was provided that “ one-third in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, which has not been sold on execution, or other judicial sale, and to which the wife has made no relinquishment of her rights, shall, under the direction of the court, be set apart by the executor as her property
From this statement it will be seen that at the time of the sheriff’s sale, and the claim of dower, the common law rule obtained. At the time of the husband’s death, the Code of 1851 was in force, and § 1394 obtained in the admeasurement of dower. And the material question, therefore, is, whether plaintiff’s right was divested by the sheriff’s sale of March 3d, 1845. And for this State, the question is a new one. Several cases have been before us upon the subject of dower, but none of them involved the very point presented in this. For discussions upon the general subject in this State, see the following cases: Davis v. O'Ferrall, 4 G. Greene, 168-358; Rowland v. Rowland, Id., 183; Gano v. Gilruth, Id., 453; Young v. Walcott, 1 Iowa, 174; O'Ferrall v. Davis, Id., 560; Corriell v. Ham, 2 Id., 552; O'Ferrall v. Simplot, 4 Id., 381; Clark, Adm'r, v. Griffith, Ex'r, Id., 405; McCraney v. McCrany, 5 Id., 232; Phares v. Walters, 6 Id., 106; Westfall v. Lee, 7 Id., 12; Barnes v. Gay, Id., 26; Burke v. Barron, 8 Id., 132; Cavender v. Smith, Id., 360; Pense v. Hixon, Id., 402.
We repeat, that none of these cases involved the precise question here presented. Those in 4 G. Greene, 168 and 358, 1 Iowa, 174, and 4 Id., 381, may be said to settle and recognize certain rules and principles which should control its disposition ; and we therefore make it our first duty to ascertain how far they are applicable. The cases in 4 G. Greene, which the others follow, was where the husband had voluntarily aliened the estate, the wife not joining in the conveyance in the manner required by the statute. At the time of such conveyance, the wife was
It will be seen, however, from these eases, that there was no question but what the widow was entitled to dower, the only controversy being whether she took under the law as existing at the time of the conveyance by the husband, or that in force at the time of his death. And it is observable that they were decided mainly upon the ground that her estate was enlarged by the subsequent legislation (§ 1394 of the Code); and that the statute should not have a retroactive operation, so as to lessen the estate actually purchased by the husband's vendee. Whether the same conclusion would have been reached if her estate, under the act in force at the time of the husband’s death, had been less is not discussed, and of course not determined. Much of the reasoning used, however, would seem to indi
Many reasons might be adduced to show the propriety and soundness of these decisions, as that marriage and the rights incident thereto are public matters, to be regulated and governed by law; that the obligations arising are, for the most part, created by the public law and subject to the public will, and not to that of the parties; that it is a connection of such a solemn character, and one upon which the public welfare so greatly depends, that society and the public have as great an interest in its regulation as the parties themselves (Dickson v. Dickson, 10 Yerg., 110;) that its rights and obligations are derived rather from the law than from the contract itself (Townsend v. Griffith, 4 Har., 440); that it is not strictly a contract, but a status, resembling rather the relation of father and child, than that 'of a contract between two parties (Bishop, §§ 29-41); that, by the common law, the legal existence of one of the parties is merged into that of the other; that, as a status, it is essentially dependent upon the sovereign will, and is not embraced in the constitutional interdict or acts impairing the obligations of contracts (7 Dana, 181); but it is sufficient to state them, (and others might be added,) without entering at length into their discussion.
Not only so, but in measuring her rights, as already seen, we look to the law in force at the time of the husband’s death, for it is this event which ripens or makes consummate the prior right, which, so long as it rested upon the marriage and seizin, was inchoate only. If there was no law in force at that time giving her the right, then it is extinguished. She cannot take, under a law repealed prior to that time. And, taking under the law then existing, she must take it with its restrictions and limitations,
But finally, as already suggested, if she does not claim under this law, she cannot under any. It is immediate and not prospective merely in its operation. It takes the estate as it finds it at the time of the death, the death occurring under the law. She stands under the law as though she had relinquished her right at a time when she was entitled to but one-third for life. If she had thus relinquished, there could be no claim that the existence of a statute at the time of the death, giving her one-third in fee, would inure to her benefit in the face of her prior relinquishment. And with no more propriety can she prevail
The judgment below, sustaining the demurrer to plaintiff 's petition, is therefore
Affirmed.