53 Neb. 375 | Neb. | 1898
John Motley died intestate in Adams county seized in fee-simple of certain real estate situate therein, leaving a widow and four children. In pursuance of a license granted therefor by the district court of said county Motley’s administrator sold such real estate for the purpose of paying the unsecured debts of the intestate which had been proved and allowed against his estate in the county court of said county. Subsequently Emily Motley, the widow, brought this proceeding, under the statute, in the county court of said county to have her dower assigned in the lands of which her husband died possessed. The county court rendered a judgment assign
1. In support of the judgment of the district court it is insisted that the sale of the lands to pay debts made by the administrator of itself divested the widow’s dower. Section 1, chapter 23, Compiled Statutes, provides: “The widow of every deceased person shall be entitled to dower or the use during her natural life of one-third of all the lands whereof her husband was seized of all [an] estate of inheritance at any time during the marriage unless she is lawfully barred thereof.” Other sections of this statute prescribe what causes shall operate to bar the widow of dower in the lands of which her husband was seized during the coverture. ■ Section 2 of the chapter provides that if the husband exchange lands of which he is seized for other lands, his widow shall not have dower in both tracts, but may elect to take her dower out of either tract, provided she begins proceedings to have her dower assigned in one tract or the other within one year after her husband’s death; and if such a proceeding is not brought within such time, she shall then have dower only in the land received by her husband in the exchange. Section 3 bars the widow of dower in lands mortgaged by her husband prior to the marriage as against the mortgagee and those claiming under him. Section 4 bars the widow of dower in lands purchased by the husband during coverture and mortgaged to secure the purchase money, as against such mortgagee and those claiming under him, even though she may not have united in such mortgage. Section 12 provides that a married woman residing in this state may bar her right of dower in the land of her husband by joining in a conveyance thereof and acknowledging the same. Section
These statutes expressly provide how a widow may be lawfully barred of her- dower; and it is to be observed that no one of these provisions deprives a widow against her consent of dower in the lands of which her husband died seized; but her loss of dower is made to depend upon her voluntary act. The statute does not prescribe, either expressly or by implication, that the sale by an administrator of his intestate’s lands for the payment of his debts shall have the effect of divesting the widow’s dower in such lands; and while the lands of an intestate descend to his heirs subject to his debts (Compiled Statutes, ch. 23, sec. 30), and the title which the heirs take to such lands may be divested by a sale thereof for the payment of the debts of the intestate allowed against his estate by the county court, the dower of the widow in such lands does not come to her charged or incumbered with such debts or claims. On the death of her husband her inchoate right of dower, which up to that time was a mere lien charge or incumbrance upon the real estate of the husband, ceased to be such lien or charge, and became an estate, carved out of the lands of the intestate and exempted during her life from the payment of the
As we have already seen, the dower estate of the widow was not liable for the debts of the husband which had been allowed against his estate by the county court; and no statute of the state authorizes the district courts, when granting a license to sell the real estate of the intestate to pay his debts, to include therein the widow’s dower. Indeed, it is clear from a reading of the statute on the subject of the sale of lands for the payment of the debts of an intestate (Compiled Statutes, ch. 23) that these statutes contemplate only the sale of the intestate’s interest in the lands of which he died seized. But his interest in those lands, even during his lifetime, was subject to his wife’s inchoate right of dower, and, at the instant of his death, the law transmuted the inchoate dower lien into an absolute dower estate, subtracted it from the land's of the intestate, and vested the right thereto in his widow. By section 82 of said chapter it is provided that such a license may be so framed as to authorize the sale of the reversion of the dower of the widow, and if not so framed, that such reversion may be sold after the expiration of the widow’s life estate. In the case at bar the administrator described the lands of which the intestate died seized, procured a license for their sale to pay his debts, and sold them without any more specific description. Nowhere in the proceedings was it stated, in so many words, that he was selling merely the interests of the intestate in those lands; that he was or was. not attempting to sell the dower estate of the widow in those lands, nor that he was or was not selling or attempting to sell the reversion of the dower of
2. A second argument of the purchaser at the administrator’s sale in support of the judgment of the district court is that he is an innocent purchaser of this real estate without notice of the rights of the widow to a dower estate in these lands; that when he purchased them at the administrator’s sale he believed he was acquiring a perfect title to all the lands described in the license granted by the district court to the administrator. . But the administrator’s sale was a judicial sale. It was made and approved by authority of the district court of the county where the lands were situate, and the doctrine of caveat emptor applies to a purchaser of lands at a judicial sale. The purchaser was bound to take notice of the authority of the administrator, and this authority was to sell only the interest which the intestate had at his death in the lands sold. He was purchasing real estate, and it was his duty to examine the title and he had no right to rely upon statements of the adminis
3. The widow of the intestate was made a party to the proceedings of the administrator for the sale of these lands. Notice, as required by the statute, was served upon her to appear and show cause, if any she had, why such license should not be granted, but she made no appearance whatever to that proceeding. Another argument of the purchaser at this administrator’s sale, in support of the judgment of the district court, is that the widow cannot now maintain this action to have her dower assigned, inasmuch as she neglected to appear in the district court in the proceeding by the administrator to sell the lands of her husband and set up her dower estate in that proceeding. We do not think any adjudicated. case can be found which will sustain this contention. The writer at least, after a patient and protracted search, has been unable to find any such case. Whether the district court is invested with jurisdiction to assign dower in any case we do not determine, but certainly that was not the object of the proceedings by the administrator in seeking a license to sell the real estate of his intestate. The application of the administrator in that proceeding alleged the death of his intestate, described certain lands of which he died seized, that certain claims had been proved against his estate in the county court,
The question as to whether a widow is barred from prosecuting an action for the assignment of dower in lands which had been sold under a judicial proceeding to which she was a party, but made no appearance, was presented to the supreme court of Illinois in Shaeffer v. Weed, 3 Gil. 511, in 1846, Abraham Lincoln appearing for the widow. Shaeffer had furnished material and labor
A statute of the state of Illinois provided that one who had mortgaged his real estate should be deemed to have waived or released his homestead right in the real estate therein if there was inserted in the mortgage the following: “Hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this state.” A man and his wife executed a mortgage upon their homestead, but the mortgage did not contain the release of the homestead right as provided by statute. Suit was brought to foreclose this mortgage. The husband and wife were made parties and duly served with process, but made default. A decree of foreclosure was entered, the real estate sold, and the sale confirmed. In Hoskins v. Litchfield, 31 Ill. 137, the supreme court of Illinois held that the husband and wife were not barred from asserting their homestead rights in the mortgaged premises because of their failure to appear and set up that right in the foreclosure proceeding, and that the decree pronounced in that action did not have the effect to take away the homestead right of the husband and wife. The court said: “This mortgage as to homestead right is like a mortgage in which the wife has not released her right of dower, when sought to be enforced in defiance of that right. Suppose in such a case the wife were made a party to a bill to foreclose a mortgage, without any averment that any right of dower existed or that the wife had released her dower, and a decree passed
In Grady v. McCorkle, 57 Mo. 172, the owner of real estate entered into a contract to convey the same and died. After his death the contractee brought suit against his widow and heirs for the specific performance, of this contract. The widow was duly served with process in that suit, but made no appearance therein, and a decree of specific performance was entered as prayed by the contractee. Subsequently the widow instituted a proceeding to have her dower assigned in this real estate and the contractee interposed the decree entered in the specific performance suit as a bar to the widow’s claim for dower; but the court held: “In a suit for specific performance of a contract to convey land, brought against the widow and heirs of the owner, where the dower of the widow is not in any manner determined or litigated, or drawn in question by the proceedings, a decree for plaintiff will not estop the widow from afterward recovering her dower.” The statute of Missouri, like ours, provided that the widow should be endowed with a third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the
A case exactly in point here is Compton v. Pruitt, 88 Ind. 171. In that case an administrator was licensed to sell the lands of his intestate to pay debts proved against his estate. His widow was made a party to this proceeding, but did not appear therein. The widow then brought suit to have her dower assigned and the proceedings of the administrator by which the lands of the intestate were sold and conveyed were pleaded in bar of tin' widow’s action; but the court overruled the plea ano summed up its conclusion in the syllabus as follows: “An administrator cannot, without a widow’s consent,
In Merchants Bank v. Thomson, 55 N. Y. 7, it was held: “Where the wife of a mortgagor has not joined in the mortgage and has an inchoate right of dower in the mortgaged premises, the making of her a party to an action of foreclosure without allegations in the complaint that the mortgage is prior, superior, or hostile to her interest does not affect that interest, nor does the general clause in the judgment foreclosing defendants of all right in the premises.”
In Parmenter v. Binkley, 28 O. St. 32, D. and M. instituted proceedings to foreclose a mortgage executed by B. alone, making B.’s wife a party. The wife did not answer or appear in the case. A decree of foreclosure was rendered and the land sold, and the court held that the foreclosure proceeding did not bar B.’s wife of her right of dower in the land sold.
4. A fourth argument of the purchaser is that the widow has estopped herself by her conduct from now claiming her dower estate in the lands in controversy. The averment of the purchaser’s answer on this subject is as follows: “That said plaintiff [that is, the widow] was present in person and attended the sale of said real estate and heard the bids made therefor and knew what said real estate sold at and never at any time made any objections thereto.” The evidence sustains this averment of the answer. But the widow has not estopped herself from claiming her dower estate, because she attended the administrator’s sale and made no objections thereto. The administrator was not selling or attempting to sell.her property. She had no objection to the
Scribner, discussing the question under consideration and citing the authorities, says: “-Where the widow has done nothing to mislead the purchaser, and the circumstances are such that she is not required by good faith to disclose her claim, her mere silence in regard to it does not affect her right. Thus, her failure to give notice of her claim when the land in which she has dower is advertised for sale is no bar to her recovery. So, where lands are sold by a commissioner under an order of court, obtained by the widow as administratrix, but nothing is said or done to induee the belief that she will waive her dower, a simple omission on her part to announce at the sale that the land will be sold subject to her dower will not estop her from asserting that right. * * - In order to constitute an estoppel in pais not only must the widow by her words or conduct have caused the purchaser to believe that he would acquire a title discharged from dower, but he must also have acted, upon that belief in making his purchase and paying the purchase money.” (2 Scribner, Dower [2d ed.], p. 271.)
The same question was presented in House v. Fowle, 29 Pac. Rep. [Ore.] 890, and there the court said: “A widow is not estopped to assert her dower in land sold by order of court to satisfy decedent’s debts because she assured the purchaser that the title was good and did not intimate her intention to claim the saíne — her dower. * * The defendant’s next contention is that under the par
The question under consideration was presented to the supreme court of Illinois in Toledo, P. & W. R. Co. v. Curtenius, 65 Ill. 120, and the court said that a widow was not estopped from asserting her claim for dower because she had consented to and advised a guardian’s sale of the real estate of which her husband died seized.
5. The final contention of the purchaser here is that the widow is estopped from claiming her dower estate because she received a part of the proceeds of the land
We reach the conclusion that in the case at bar the widow has been illegally and unjustly denied her dower estate in the lands of her deceased husband. The judgment of the district court is reversed and the causé remanded for further proceedings in' accordance with this opinion.
Reversed and remanded.