| Ind. | Nov 15, 1875
Suit to partition lands, and for an account of rents and profits. Complaint in two paragraphs. In the first, the appellant alleges, that on the 24th day of July, 1837, Samuel Taylor became the owner in fee simple of the undivided one-half of lot number five, in the original plat of Lafayette; that on the 10th day of March, 1840, William Skinner, sheriff of Tippecanoe county, undertook and pretended to sell the interest of. said Samuel Taylor in said property, to satisfy three several executions in his hands against said Samuel Taylor; and that the defendants pretend to hold the undivided half of said lot by virtue of said
We cannot perceive that the secoxxd paragraph differs from the first in anything, except that it contains an averment that the “ sale by said sheriff as returned by him, is null and void, he having sold the same, being several separate and distinct parcels of land, as a whole, without offering it in separate parcels;” demanding the right to redeem said prenxises, axid that the sheriff’s sale be declared void.
A sepax*ate demurrer to each paragraph was filed to the complaint, alleging an insufficiency of facts, both of whieh .were sustained, exceptions taken, axxd judgment for appellees rendered on demurrer.
The question raised in this record, whether a widow had any right in her husband’s lands, held in fee simple, which he had conveyed alone, or which had beexi sold at sheriff’s sale, during coverture, and if any, what, when first presented to this court under the present law of descent, was oxxe of ackxxowledged difficulty. It was first fully met, we believe, in Strong v. Clem, 12 Ind. 37" court="Ind." date_filed="1859-05-23" href="https://app.midpage.ai/document/strong-v-clem-7034100?utm_source=webapp" opinion_id="7034100">12 Ind. 37, and there decided adversely to the widow’s claim. This decisioxi has beexi frequently referred to, fully discussed, and thoroughly exaxnined from that time to the present, especially in May v.
The wisdom of this rule has been doubted by learned judges and able jurists; but the writer of this opinion, speaking for himself only, was never able to perceive how any better, or indeed any other, interpretation could have been given to our present statute of descents. The legislature presented the dilemma to the courts, either to abrogate the inchoate right of dower on one side, or impair the validity of vested rights in the property on the other. It is clear that the legislature had the power to abolish inchoate dower, and just as clear that it had not the power to impair a vested right.
The purchaser at sheriff’s sale took the property subject only to inchoate dower; it was not competent for the legislature afterwards to change the incumbrance into a fee simple.
The courts, then, had no choice; it was their duty to uphold the legislature in what it had constitutionally done, and not to so interpret its acts as to make it do what could not constitutionally be done. And the right of inchoate dower must necessarily pass away with the generation in existence at the time the law of descent was changed, while vested rights must be preserved as long as constitutional government is respected.
To apply these principles to the case before us: The appellant could not receive as a dowress, because no such right existed at the time of her husband’s death. She could not inherit under section 17 of the law of descent, because her husband was not seized of the property at the time of his death. She could not take under section 27, because her
The additional averments in the second paragraph of the complaint do not make a case entitling the appellant to redeem the land by paying the judgment, nor to set aside the sheriff’s sale.
The judgment below is affirmed, with costs.