69 Md. 235 | Md. | 1888
delivered the opinion of the Court.
Thomas A. L. Mitchell and his sister, Mrs. Braunstein, were seised in fee as tenants in common of certain land in .Prince George’s County. Mitchell mar
1st. It is first insisted that her claim is barred by a sale of the lands under the decree passed in the equity proceedings set out in the record, which is claimed to be a sale for the purpose of partition of the property between the two tenants in common.
There can be no doubt but that a sale for the purpose of partition under our statute law upon that subject, will bar the inchoate right of dower of the wife of one of the co-tenants in common, and that the purchaser will take a clear title to the land. That question was fully considered and decided in Rowland vs. Prather, 53 Md., 232. In that case the Court cite and quote with approval the reasoning and language used by the Supreme Court of Ohio in Weaver vs. Gregg, 6 Ohio State Rep., 547, where the question arose under a statute of that State similar to our own. “The right of dower of the wife” (say the Court) “subsists in virtue of the seisin of the husband, and this right is always subject to any infirmity, encumbrance, or incident which the law attaches to that seisin, either at the time of the marriage or at the time the husband became seised. A liability to be divested by a sale in partition is an incident which the law affixes to the seisin of all joint estates, and the inchoate right of the wife is subject to this incident.” In other words the right which the law gives to every tenant in common to have partition of lands held in common, or a sale and distribution of the proceeds, if it appears they cannot be
But we 'think it clear that in order to bar the wife's claim in such cases, the proceedings, when in equity, must be conducted under, and in substantial compliance with, the provisions of sec. 99, Art. 16, of the Code, which gives the Court power to “decree & partition” of lands held in common “on the bill or petition” of any tenant in common, “or if it appears that the said lands cannot.be divided without loss or injury to the parties interested, the Court may decree a sale thereof, and a division of the money arising from such sale among the parties according to their respective rights.” There must be a bill or petition filed by one or more of the tenants in common seeking partition of the lands, and before a decree for a sale can be passed it must be made to appear by proof or other proper proceedings that the lands cannot be divided without loss or injury to the parties interested. These, as it seems to us, are essentiál requirements of the statute.
Now what are the proceedings relied on by the defendants ? Without stating them in detail, it appears that
Such are the proceedings and the decree, and it is obvious they entirely fail to meet the requirements of the statute. There was no petition or bill filed by one of the tenants in common nor any proof that the' lands could not be.divided. A mortgagee of the undivided interest of one tenant in common has no right to file a bill for partition under this section of the Code. He may foreclose his mortgage and have a sale of that interest, but if he couples with that an application for partition his bill is multifarious. Bell vs.
2nd. The second defence is founded on the facts that on the 30th of July, 1866, Mitchell and his wife executed a promissory note to Mr. Stephen for $130, in which they agreed that Mrs. Mitchell’s right of dower in her husband’s real estate should be responsible for the payment of the same, and to confess judgment upon the same; that judgment was accordingly entered against them on this note on the 7th of August, 1866, and in September, 1867, when the land had been sold under the decree, Stephen filed his petition askin'g that this judgment be paid out of the proceeds; that Mitchell and wife gave their written consent to this application, and this judgment was allowed out of Mitchell’s share of the fund.
After a careful consideration of these facts and the law bearing upon them, we do. not think they can operate as a bar to this claim for dower. At the time this note was given the Act of 1872, making the wife responsible at law upon notes executed jointly with her husband had not been passed, and therefore the note and judgment thereon were as against the wife of no effect at law even as against her separate estate. Nor do we think that in equity the note could operate as a release of her inchoate right of dower, or as an estoppel upon her in respect to that right. It professes to pledge her “ right of dower,” but strictly speaking, she had then no right of dower, but only an inchoate and
3rd. In this country the doctrine is well settled that the plea of a bona, fide purchase for value without notice, is no defence'even in a Court of equity against a legal claim to dower. 2 Scribner on Dower, 168. This defence therefore is unavailing.
4th. The last defence is that the claim is barred by laches. The bill was filed by the widow in June, 1885, about four years and five months after the death of her husband, when her right to dower became consummate. The Statute of Limitations is no bar, and does not in equity apply to a widow’s claim of dower; (Wells vs. Beall, 5 Gill & J., 468,) and there is no precedent for holding that the lapse of so short a period as has
We have thus disposed of all the objections to this claim, we deem it necessary to notice, and the result is that the decree dismissing the hill must he reversed and the cause remanded.
Decree reversed, and cause remanded.