77 Neb. 94 | Neb. | 1906
In November, 1887, Charles B. Bailey and Lydia, his wife, conveyed two lots in the town of DeWitt to Alexander Hawes and ffm. R. Nelson. The conveyance was by warranty deed, but was in fact a mortgage made to secure Hawes and Nelson against liability upon a note on which they had become security for Bailey. Sometime after the conveyance Mrs. Bailey ivas committed to the insane asylum, and Frank R. Wild is her guardian. In due time Bailey paid the note upon which Hawes and Nelson were sureties, and thereafter, and apparently at the request of Bailey, Nelson conveyed his interest in the lots to George A. Hunt, and by several mesne conveyances the title held by Nelson finally vested in Nicholas Aebig by deed of March 2, 1901. In the meantime Hawes had deceased and Aebig commenced an action in the district court for Saline county against his heirs, alleging in the petition that the deed from Bailey and wife to Hawes and Nelson was made as security
The principal questions discussed in the briefs of the parties are the right of the widow to dower and the amount thereof. It is insisted by the appellant that Lydia Bailey, by joining with her husband in the deeds conveying the lots to Hawes and Nelson, barred her dower interest. It is urged that Charles B. Bailey was never, subsequent to the date of these deeds, seized of “an estate of inheritance” in the lots, and his widow is not, therefore, entitled to a dower interest. Crawl v. Harrington, 33 Neb. 107, and Hall v. Crabb, 56 Neb. 392, are relied upon as authorities in support of this claim. In each of the cited cases the land in which dower is claimed was held by the deceased spouse under executory contracts of purchase, and this court held that such contracts did not vest in the holder a
Sections 3-6, ch. 23, Comp. St. 1905, clearly provide for dower to the widow in lands owned by the husband in fee, but incumbered by mortgage. If, instead of conveying by deed by way of security, Bailey had executed an ordinary mortgage upon these lots to Hawes and Nelson, no one would, under our statute, question the widow’s right of dower in the equity. On principle we cannot see how any different rule would apply to a purchaser of the lots in question, who had notice that the conveyance to Hawes and Nelson was by way of security, and not intended to operate as an unconditional conveyance of the title to them. That the Storz Brewing Company had knowledge that this conveyance was by way of security only is abundantly shown by the evidence, the abstract of title furnished prior to its purchase containing the proceedings had in the district court for Saline county in the case brought by Aebig to have such conveyance declared a mortgage. Relating to the amount of damages allowed for detaining the dower of the widow, section 24, ch. 23, Comp. St. 1905, is as follows: “Such damages shall be one-third part of the annual value of the mesne profits of the lands in which she shall so recover her dower, .to be estimated in a suit against the heirs of her husband from the time of his death, and in suits against other persons, from the time of her demanding her dower of such persons.” There is no competent evidence in the record that demand of dower was made upon the
We recommend that the decree of the district court be modified so as to allow damages to the plaintiff on account of the dower of his ward at the rate of $20 quarterly from the commencement of the action, and that in all other respects the decree stand affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is modified so as to allow damages to the plaintiff on account of the dower - of his ward at the rate of $20 quarterly from the commencement of the action, and that in all other respects the decree stand affirmed.
Decree modified.
