150 Iowa 737 | Iowa | 1911
The question presented has not been directly adjudicated by this court. It is this: In the partition of land between a surviving spouse and the heirs of the deceased spouse is the survivor entitled to have mortgage indebtedness^ which was secured upon the property prior to the marriage, satisfied out of the two-thirds share, which is to be distributed among the heirs, leaving the dower interest of the survivor free from liability for such mortgage indebtedness, providing the remaining two-thirds going to the heirs is sufficient to satisfy such indebtedness ?
1. Appeal:dismissal: second appeal. I. We are first met, however, with motions in behalf of appellee Richey to dismiss the separate appeals of the plaintiffs and of his codefendants. As to the plaintiffs’ appeal, the contention is that a prior appeal from the same decree had been taken by . d plaintiffs and subsequently dismissed before the present appeal was taken, and that there is no right after the dismissal of one appeal to prosecute another, even though the subsequent appeal is taken within . the
The first pertinent question which was determined under this statutory provision was as to the liability of the dower interest to be subjected to the payment of the debts of the deceased, and it was held that, as the survivor’s interest attached during coverture and not on the death of the owner, the debts of the estate should be satisfied out
\ AThe next similar question to arise was as to the liability of the dower interest to contribute in the extinguishment of a purchase-money mortgage given by decedent during coverture in which the survivor had not joined, and it was held that the dower interest was subject to such contribution, for the reason that in contemplation of law there was no time intervening between the execution of the deed by which the land was acquired by deceased and the execution of the mortgage thereon for the purchase price, and that the inchoate dower right attached only to the land subject to such mortgage. Thomas v. Hanson, 44 Iowa, 651. ya And the same principle was recognized as controlling where the deceased had acquired property subject to a mortgage assuming its payment as part of the purchase money. Kemerer v. Bournes, 53 Iowa, 178.*^It was next held that where the survivor had joined during coverture in the execution of a mortgage releasing dower, the interest of such survivor is subject to the mortgage without right to require that the mortgage indebtedness be first satisfied out of the portion of the property which descends to the heirs; the court saying that, while the dower interest is exempted from the liability for unsecured debts because in contemplation of the law the survivor had no voice in contracting them, such reason fails when the survivor has joined in executing an incumbrance upon the land. Trowbridge v. Sypher, 55 Iowa, 352. In that case it is suggested that the share given to the survivor by law is a certain fraction in value, and that, if the survivor has joined during coverture in executing an incumbrance, such incumbrance should be taken into account in determining the value of the land out of which the dower interest is to be taken, The question is said
^ The next question to arise was as to whether the survivor had any dower interest in land acquired by decedent during coverture subject to a condition for breach of which it. had been reconveyed to the grantor without the spouse joining therein, and it was held that in such a case no dower right remained to the survivor. Sullivan. v. Sullivan, 139 Iowa, 679. In that case it is said that “dower is favored by the courts, but it is not to be allowed at the expense of clearly inequitable results unless the statute clearly requires it. Such is not the case here. The claim of dower can be of no higher quality than the seisin of the husband at the instant the concurrence of such seisin and the wife’s coverture gave it birth.” 'Here, again, the rule that the statute should be given an equitable interpretation is recognized.
In the case, before us the deceased at the beginning of the coverture was seised of the legal title to the land here involved, subject to mortgages. At no time during the coverture did the deceased have any higher right than that which existed when coverture commenced. And we think it is one-third in value of this interest — that is, the legal title subject to the mortgages — to which the surviving husband is entitled. Surely if the survivor’s interest is subject to purchase-money mortgages, it should be for a similar
We reach the conclusion that the lower court erred in requiring the satisfaction of the mortgages out of the proceeds of the land before setting apart to the defendant the one-third interest to which he was entitled as surviving spouse, and the case is remanded to the lower court for a decree in harmony with this opinion, or the appellants may have a decree in this court on their election to do so.- — ■ Reversed.