83 Neb. 400 | Neb. | 1909
This is a suit to quiet plaintiff’s title to a quarter section of land in Webster county. In his petition plaintiff alleges in substance the following facts: Milton M. Morgan owned the land September 13, 1881, and on that date conveyed it by a warranty deed, describing himself as a single man, to Charles F. Allen. By mesne conveyances it was transferred to plaintiff, May 8, 1902. Defendant claims she was the wife of Morgan when he executed the deed mentioned, and is now his widow and has a dower interest in the land. Plaintiff further pleads that the claims of defendant are unfounded, that she has no estate or interest in the premises, that her claims are clouds upon plaintiff’s title, and that. Morgan died in Kansas, January 28, 1902. By answer defendant avers she was married to Morgan August 5, 1855, was his lawful wife until his death, and is entitled to the rents and profits of one-third of the land from January 28, 1902, by virtue of her dower interest. She also avers that she is a resident of Douglas county, Nebraska, and that Morgan left surviving him the defendant, his wife, and two daughters. Plaintiff filed a reply, in which he stated that defendant was a nonresident of the state of Nebraska, September 13, 1881, when Milton M. jjdorgan deeded the land to Charles P. Allen, and that at the time of the death of Morgan he and defendant were nonresidents of the state of Nebraska; the defendant being a resident of Wisconsin, and Morgan being a resident of Kansas. The district court found the issues thus joined in favor of plaintiff and entered a decree in his favor. Defendant appeals.
The first assignment of error argued by defendant is
Another point argued by defendant is that the realty in controversy was the homestead of the Morgan family, and therefore was not conveyed to Morgan’s grantee, September 13, 1881, by the deed to which defendant was not a party. The answer to this argument is there is no pleading of proof to show that the property was ever claimed or occupied as a homestead by either defendant or her husband.
Defendant’s principal argument is directed to the proposition that her absence from the state did not deprive her of her dower rights. The facts upon which this argument rests, as contended by defendant in her brief, are that the Morgans did not own a home in Wisconsin; that the husband, as the head of the family, went to Nebraska to take up a homestead, and, when settled and established, was to send for his family; that they had lived together more than 15 years; that he kept up a correspondence with his wife and a daughter, informing them that lie intended to bring them to the homestead in Nebraska when ready; that there had never been any trouble in the family, and that it was not a case of separation. After presenting this summary of facts, as understood by de
Morgan parted with his title to the land, September 13, 1881, and died January 28, 1902, and, if the finding of the trial court is sustained by the evidence, defendant’s claim is defeated by the following statutory provisions, which were in force at the time of her husband’s death: “A
woman being an alien shall not, on that account, be barred of her dower; and any woman residing out of the state shall be entitled to dower of the lands of her deceased husband, lying in this state, of which her husband died seized.” Comp. St. 1903, ch. 23, sec. 20. In giving effect to these provisions this court, in an opinion by Judge Maxwell in Atkins v. Atkins, 18 Neb. 474, said: “This section of the statute seems to have been copied from the statute of Michigan on that subject, the language being the same. The proper construction of the section was before the supreme court of that state in Ligare v. Semple, 32 Mich. 438, and it was held that where a husband conveyed lands in that state while his wife was a nonresident thereof she was not entitled to dower therein. In our view this is the proper construction to be given to the language of the statute, and we approve of and adopt it.” Other courts have taken the same view of similar statutes. Bennett v. Harms, 51 Wis. 251; Buffington v. Grosvenor, 46 Kan. 730; Thornburn v. Doscher, 32 Fed. 810.
Was the evidence sufficient to sustain the finding that Morgan executed his deed when defendant was a nonresident? Morgan came to Webster county, Nebraska, in
If the wife’s domicile followed that of the husband, the evidence would still sustain the finding of the trial court, as to defendant’s nonresidence, since, in that event, she would be a resident of Kansas, where her husband was residing at the time of his death, and not a resident of this state. It is insisted, however, that defendant’s domicile followed that of her husband to Webster county, Nebraska.; that her dower interest attached to his land there, before his death, and vested in her the instant he acquired title, and still remains a charge upon the land; that resident widows are protected in such a dower right, and that the statute quoted, in so far as it has been construed in Atkins v. Atkins, supra, to deprive a nonresident widow of the same right, is unconstitutional. One provision on which defendant’s argument is based appears in both the state and federal constitutions, and declares that no person shall be deprived of property without due process of law, and another is section 25, art. ÍI, of the state constitution, which provides that “no distinction shall ever be made by law between resident aliens and citizens in reference to the possession, enjoyment or descent of property.” In other states similar legislation has been upheld
No error appearing in the record, the judgment of the district court is
Affirmed.