Parker v. Small, 55 Iowa 732

Parker v. Small

55 Iowa 732 | Iowa | 1881

Day, J.

í. dower : statute1 gov-*’: ermng. At the time of the death of the husband, July 14th, 1869, the law of dower was as follows: “ One-third in value of all the real estate in which the husband an7 time during the marriage had a legal or equitable interest, which has not been sold on execution or other judicial sale, to which the wife has made no relinquishment of her right, shall, under the direction of the court, be set apart by the executor, administrator or heir, as *733her property in fee simple, on the death of the husband, if she survive him.” Chapter 151, laws Ninth General Assembly, section 1; Code, section 2440. The plaintiff is not entitled to dower under this provision, for the land was sold under execution during the lifetime of the husband. The plaintiff claims, however, that she is entitled to dower under section 2477, of the Eevision, which was in force at the date of the execution sale, and is as follows: “ 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, 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 in dower upon the death of the husband, if she survive him. Said estate in dower to be and remain the same as at common law.”

The exact question here presented was raised and determined adversely to the position of the plaintiff in Lucas v. Sawyer, 17 Iowa, 517. In that case, as in this, the execution sale occurred when the common law rule of dower obtained. At the time of the husband’s death section 1394 of the Code of 1851 was in force, which is substantially the same as section 2440 of the Code of 1873. It was held that the widow was not entitled to dower in the property sold under execution, and that her dower must be admeasured by the law in force at the time of the husband’s death. This case is decisive of the present controversy. See, also, Sturdevant v. Norris, 30 Iowa, 65. The plaintiff relies upon Moore v. Kent, 37 Iowa, 20. That case simply holds that after property has been aliened by the husband, the wife not joining in the conveyance, the dower cannot be enlarged as against the grantee of the husband, and that the dower must be assigned under the law in force at the time of the alienation. It is apparent that this case falls under a principle entirely different from Lucas v. Sawyer, and Sturdevant v. Morris, supra. The opinion in Moore v. Kent refers to these two cases, and recognizes their soundness. The demurrer was properly sustained.

Affirmed.