38 Ind. App. 696 | Ind. Ct. App. | 1906
Section 2652 Burns 1901, §2491 R. S. 1881, provides that “a surviving wife is entitled * * * to one-third of all the real estate of which her husband may have been seized in'fee simple at any time during the marriage, and in the conveyance of which she may not have joined, in due form of law.” By §2669 Burns 1901, §2508 R. S. .1881, it is provided that “in all cases of judicial sales of real property in which any married woman has an inchoate interest by virtue of her marriage, where the inchoate interest is not directed by the judgment to be sold or barred by virtue of such sale, such interest shall become absolute and vest in the wife in the same manner and to the same extent as such inchoate interest of a married woman now becomes absolute upon the death of the husband, whenever, by virtue of said sale, the legal title of the husband in and to such real property shall become absolute and vested, in the purchaser thereof. * * * When such inchoate right shall become vested under the provisions of this act, such wife shall have the right to the immediate possession thereof; and may have partition.”
In the case at bar, Lewis C. Staser brought a suit for partition, setting up his ownership as tenant in common with other parties named of certain real estate described. Said real estate was found to be indivisible. A commissioner to sell the same was appointed, who duly reported such sale and now has the proceeds thereof in his hands for distribution.
Subsequently to the sale, the wife of said Staser, was by order of court made a party defendant, and sets up her right as such wife, under §2669, supra. Gaar, Scott & Co. were also made defendants and set up their right to the
The question for decision is whether the judgment creditor of the husband can, as against the wife, hold the entire fund realized from the sale in the partition proceeding of the husband’s real estate, in the conveyance of which the wife has not joined, and to which proceeding she was not a party.
This case is therefore transferred to the Supreme Court, with the recommendation that Haggerty v. Wagner, supra, be overruled.