30 Iowa 65 | Iowa | 1870
It further appears, that, default having been made in payment of the mortgage of the N. E. quarter of said section 5 to James M. Moss, the same was foreclosed in pursuance with the power therein granted, by notice and sale, and sold to A. P. Goddard, July 31, 1858, and a deed for the same made and delivered August 2,1858. Goddard conveyed the same land to A. H. Norris, December 24, 1863. The governor of Iowa, on the 9th day of July, 1863, issued a patent to John P. Ellis, for this land covered by the mortgage to James M. Moss, and, on the 10th of February, 1864, Ellis conveyed the same to A. H. Norris — the purchaser under the foreclosure. On the 10th day of September, 1866 the treasurer of Bremer county
"William Sturdevant died August 21, 1865.
The title' which William Sturdevant obtained in the land purchased by him of the school fund commissioner, was an equitable one, that might ripen into a legal one upon his making full payment and obtaining a patent from the State. He paid one-fourth of the purchase-money in hand, but failed to make any further payments. He and his wife (the plaintiff) conveyed his equitable title' to one-quarter section of the land by the trust deed. • Default was made and his interest was sold by the trustee. Wm. Sturdevant, alone, mortgaged his interest in the other quarter section. He failed to pay the money secured by the mortgage, and it was foreclosed by notice and sale according to its terms and the íaw then in force.
See Code of 1851, §§ 2071 to 2081, inclusive.
The balance of the purchase-money due the school fund was paid by the respective purchasers at the trustee’s sale and mortgage sale, and patents issued to them respectively. All this occurred during the life-time of Wm. Sturdevant. Is the plaintiff, then, as his widow, entitled to dower in any of these lands ? '
The statute regulating dower, in force at the time of the death of Wm. Sturdevant, is the act of April 8,1862, chapter 151 of the laws of the ninth general assembly, 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, which has not been sold on execution or*61 other judicial sale, to which the wife has made uo relinquishment of her right, shall, under the direction of the court, be set apart by the executor, administrator or heir, as her property in fee simple, on the death of the husband, if she survive him.”
The appellant’s counsel argues that the statute in force at the time of making the trust deed and mortgage by plaintiff’s husband should govern the case at bar, and they cite former decisions in this court, to wit: Davis v. O ’Ferrell, 4 Gr. 168; Claussen v. La Franz, 1 Iowa, 226; O'Ferrell v. Simplot, 4 id. 381; Lucas v. Sawyer, 17 id. 517, and several New York cases, to sustain this position.
The law in force at the time of making the deed of trust and the mortgage is section 2477 of the Revision of 1860, which was repealed by the act of April 8, 1862.
The law of the Revision, section 2477, gave to the widow “ 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 relmgwishmmt of her rights, as her property in dower upon the death of the husband, if she survive him, said estate in dower to remain as at common law.”
It is immaterial which law applies, so far as relates to the one quarter section — the north-west quarter of section five — because under either the widow’s dower is barred by her joining with her husband in the conveyance. Grapengether v. Fejervary, 9 Iowa, 163, 173; 4 Kent's Com. 59, 60; Catlin v. Ware, 9 Mass. 218; Edwards v. Sullivan, 20 Iowa, 502; Shields v. Key's Adm'r., 24 id. 298.
The plaintiff joined with her husband in the trust deed to Kingsley, and she is therefore barred of her dower in the land thereby conveyed, and which was subsequently sold by the trustee.
Excepting the case of Lucas v. Sawyer, 17 Iowa, 517,
And it was held that the dower should be measured by the law in force at the date of the death of the husband, and that the widow was not entitled to dower in lands sold on execution under the former statute.
cites and reviews the former decisions of this court on the question, and while approving them under the special circumstances surrounding each case, says: “ It will be seen, however, from these cases, that there was no question but that the widow was entitled to dower, the only controversy being whether she took under the law as existing at the time of the conveyance by her husband, or that in force at the time of his death. And it is observable that they were decided mainly upon the ground that her estate was enlarged by the subsequent legislation, and that the statute should not have a retroactive operation, so as to lessen the estate actually purchased by the vendee.” The learned chief justice further says: In measuring her (the widow’s) rights, as already seen, we look to the law in force at the time of the husband’s death, for it is this event which ripens or makes consummate the prior right, which, so long as it rested upon the marriage and seizin, was inchoate only. If there was no law in force at that time giving her the right, then it is extinguished. She cannot take under a law repealed
We have seen that the plaintiff did not join with her husband in the mortgage to Moss of the north-east quarter of the section purchased from the school fund commissioner. We have also seen that this mortgage was foreclosed and the husband’s interest in the land sold thereunder, in a manner prescribed by the law then in force, so that at the time of his death his equitable title to the premises was entirely extinguished by this foreclosure and sale.
If the land had been sold on execution issued upon a general judgment against the husband in his life-time, the plaintiff would have been barred of her dower, as held by this court in the case of Lucas v. Sawyer, supra. If the mortgagee had proceeded by action in the district court to foreclose the mortgage — which he might have done — and the husband’s interest in the land had been sold on special execution, the widow’s dower would, upon the same principle and authority, have been barred, although
The question then recurs, does a foreclosure by notice and sale, under the provisions of chapter 118 of the code of 1851, have the same operation to bar dower as a sale on a general or special execution ? Although this statutory mode of foreclosure by notice and sale is not strictly within the definition of a “judicial sale,” yet the legislature authorized this method of foreclosure, and enacted that sales made in accordance with the provisions of the first ten sections of chapter 118 of the code of 1851 “ are valid in the hands of bona fide purchasers, whatever might be the equities between the mortgagor and mortgagee. Code of 1851, § 2081. And, if the legislature possessed the constitutional power to authorize this species of foreclosure, we see no good reason why the same consequences should not attach as in a foreclosure by action in court and sale on execution. The authority of the legislature in the premises is not questioned.
It follows, from the foregoing views, that the plaintiff is not entitled to dower in any portion of the premises in controversy, and the effect of the several tax sales need not be considered. .
The decree of the district court is affirmed.
■Affirmed.