Frain v. Burgett

Jordan, J. Appellants originally instituted this action by a complaint in six paragraphs, whereby they sought to redeem certain described lands from a mortgage executed to secure the purchase money thereof. A demurrer was sustained to the sixth paragraph-of the complaint, and thereafter the plaintiffs dismissed all of the remaining paragraphs, and refused to plead further, and elected to stand by their sixth paragraph, and judgment was rendered in favor of the defendants, from which this appeal is prosecuted. The action of the court in sustaining the demurrer to the paragraph in question is the only error of which appellants complain. The following are substantially the facts averred in the paragraph in dispute: — 57 — In Jnly, 1852, the board, of trustees of the Wabash & Erie Canal were the owners in fee simple of the lands described in the complaint, consisting of 320 acres, situated in White county, Indiana. On the 5th day of July, 1852, Austin M. Puett purchased this land from the said board of trustees and received a certificate of purchase for the same and entered into possession of the land, and thereafter paid the taxes thereon. In 1856, Puett, for a valuable consideration, sold the- lands to Ashabel P. Willard and James G-. Gwin, and assigned and delivered to them his certificate of purchase, and they went into possession of said real estate under said sale and transfer. On February 13, 1856, Willard, for a valuable consideration, sold and conveyed the real estate in question by general warranty deed to Gwyn, and put the latter in full possession thereof under said warranty deed. Gwin immediately made lasting and valuable improvements upon the land, and on the 1st day of April, 1856, he, it is averred, being still the owner in fee simple, and in possession of the real estate, sold and conveyed it by a warranty deed, in fee simple, for a valuable consideration, to one George Frain, and put said Frain in full possession thereof, and the said grantee made lasting and valuable improvements thereon. Said- board of trustees did not execute a deed for said real estate until December 3, 1857, when, upon the payment of the purchase money for said land, said board, by deed, conveyed the legal title oi: said real estate to Gwin. The plaintiff Catharine Frain is the widow of George Frain, who died at White county in 1894. Prior to April 1, 1856, she became the wife of said Frain, and continued as such until his death. On October 3, 1857, one Miller recovered a judgment against the said George Frain in the White Circuit Court for $716.75, together with a foreclosure of the mortgage upon the said real estate. This mortgage was a purchase-money mortgage, and Mrs. Frain, the appellant, did not join her husband in the execution thereof, and was not made a party to the suit of foreclosure, and had no knowledge or — 58 — notice of this suit until shortly before this action was commenced. On December 14-, 1857, the real estate was sold by the sheriff under said decree of foreclosure to one Hays for $10, who, upon payment of his bid, received from the sheriff a deed for said land. It is averred in the complaint that the 'said George Drain was seized in fee simple of the said real estate while he and Catharine Drain were husband and wife, and that his said wife at'no time joined her husband in the conveyance of said real estate. Through mesne coffveyances from Hays and wife, appellees acquired all the right, title, and interest of Hays and'his wife under said sheriff’s deed in and to the real estate, and their respective interests are set forth in the complaint, and the value of the rents and profits is alleged. Since the death of George Drain, his widow has conveyed, as alleged, in fee simple, to her co-appellants herein, for a valuable consideration, the undivided one-sixth of said real estate, and that appellants, as it is alleged, now hold and own the same. It is contended'by counsel for appellants that these facts, considered as a whole, show that George Drain was seized in fee simple of the lands in controversy during his marriage with the appellant, Catharine Drain, and as it further appears that she never joined her husband in any manner in the conveyance of the real estate in dispute, therefore, at his death she became absolutely seized of the one-third interest which the statute awards her, subject to the purchase-money mortgage mentioned, and that by reason of these facts, and the further fact 'that she was not a party to the action of foreclosure, she is entitled to redeem. Appellees, however, insist that, from the facts, it is disclosed that appellant’s husband was never seized, at any time during the coverture, with any other than the equitable title or estate in the land, and of this title, they claim, he is shown to have been devested before his death; hence appellant, Catharine Drain, as surviving wife, has no interest in the land. — 59 — Section 27 of 1he statute of descents in this State, being section 2491 R. S. 1881, section-2652 Burns 1894, provides as follows: “A surviving wife is entitled, except as in section 17 excepted, 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, and also of all lands in which her husband had an equitable interest at the time of his death.” Section 2499 R. S. 1881, section 2660 Burns 1894, provides: “No act or conveyance, performed or executed by the husband without the assent of his wife, evidenced by her acknowledgment thereof in the manner required by law; nor any sale, disposition, transfer or incumbrance of the husband’s property, by virtue of any decree, execution or mortgage to which she shall not be party (except as provided otherwise in this act), shall prejudice or extinguish the right of the wife to her third of his lands, * * or preclude her from the recovery thereof, if otherwise entitled thereto.” This interest of the wife attaches as an incident to the seizin of the husband during the marriage, and no act or conveyance by the husband, nor charge in respect to the land, without the wife joining him therein, can serve to devest or extinguish her interest. Grissom v. Moore, 106 Ind. 296. As the husband can do nothing, by reason of this statute, that can affect the inchoate interest of the wife when it has once attached to the land, it is evident that if the real estate is sold and conveyed, either directly by himself or through the medium of an officer of the court, as in the case at bar, in satisfaction of a mortgage executed by the husband, the wife not joining, the purchaser takes under such sale nothing more than the interest or title of the husband, which does not embrace the inchoate interest of the wife. Hence it is taken and held by such purchaser subject to the interest of the wife, and if the mortgage be for purchase money, it is then held subject to her right to redeem in the manner and under — 60 — the conditions provided by law. This court has held, and' properly so, that, under our statutes the interest of the wife in the husband’s real estate is not an encumbrance, but is an estate in the land. It is more than the right of dower as it formerly existed, for there is no reversionary interest in the party who claims through the husband. Beaver v. North, 107 Ind. 544. The principal question with which we have to deal in this case is: Can George Erain, the husband, under the facts, be said to have been seized in fee simple of the real estate at any time during his marriage? If so, then by reason of this fact, taken in connection with the other facts alleged in the complaint, appellant would be entitled to the right of redemption which she seeks in this action. Barr v. Vanalstine, 120 Ind. 590; Brenner v. Quick, 88 Ind. 546. An estate in fee simple is the highest known to the law, and is defined to be one of absolute inheritance, free from any conditions, limitations, or restrictions as to particular heirs. Anderson’s Law Diet., p. 451; 1 Bouvier’s Law Diet., p. 649. It is true that seizin of the husband in fee simple in the land during the marriage is an essential prerequisite to the attaching of the wife’s interest. However, in order that her interest may attach, the law does not require nor contemplate that an absolute seizin on the part of the husband during the coverture in all .cases must exist. In Tiedeman on Beal Prop., section 121, the author says: “In order that dower can attach, the husband must be seized of an estate of inheritance during coverture. But for this purpose it is not necessary that the husband should have the actual corporeal seizin. Seizin in’law, with the present right to actual seizin would be sufficient.” See, also, Mann v. Edson, 39 Me. 25; Atwood v. Atwood, 22 Pick. 283; Dunham v. Osborne, 1 Paige, 634; Thomas v. Thomas, 10 Ired. 123; McIntire v. Costello, 47 Hun 289; Stroup v. Stroup, 140 Ind. 179. Accepting the facts as they are averred in the complaint, they disclose that the board of trustees of the Wabash <fc — 61 — Erie Canal was in July, 1852, the owner, in fee simple, of the land involved in this action. On the 5th of that month the board sold the land to Puett and issued to him a certificate of purchase. Puett seems to have entered into possession of the land, paid tire taxes thereon, — all of which may be said to have been the exercise by him of acts of ownership. Some time prior to the 13th day of February, 1856, Puett sold the real estate to Willard and Gwin, and assigned in writing and delivered to them his certificate of purchase. On February 13, 1856, Willard sold and conveyed the real estate in fee simple, as it is alleged, to Gwin, and the said vendee immediately thereafter went into possession and made valuable and lasting improvements thereon. On April 1, 1856, it is alleged that Gwin, being the owner in fee simple of the land, conveyed it by a general warranty deed, for a valuable consideration, to George Frain, and that the latter entered into possession thereof and made valuable and lasting improvements. On the 3rd day of December, 1857, after the foreclosure proceedings and before the sale thereunder, the board of trustees of the Wabash & Erie Canal, by deed, conveyed the legal title to the real estate to Gwin. It is true, as appellees urge, that the complaint does not disclose when the mortgage was executed, but it does appear from its' averments that the mortgage was for purchase money, and that the wife, Catharine Frain, did not join her said husband in its execution. While the complaint may be said to be open to the objections that it is not as certain and specific in some respects as the rules of .good pleading require, still, this will not, as .a general rule, of itself render it bad on demurrer. City of Connersville v. Connersville, etc., Co., 86 Ind. 235, and cases there cited. Ordinarily, objections to a pleading upon the ground that it is uncertain must be interposed by a motion to make more specific. Peden v. Mail, 118 Ind. 556. But we think it may be said to be disclosed that George.Frain executed the mortgage, for it is averred that the wife did not join her husband — 62 — in the execution of this instrument. The allegations that the land was conveyed to Erain in fee simple during the marriage, and of his subsequent death, appear at least to make a prima facie case as to her interest in favor of the surviving wife. Rut it is insisted by the appellees that the specific averments in a pleading must control the general averments. In this contention counsel for appellees are right. "Whether a pleading is or is not sufficient depends upon the substantive facts and not upon the mere conclusions of the pleader. General statements of facts as a rule are controlled by specific facts disclosed in the pleading. Ragsdale v. Mitchell, 97 Ind. 458; State, ex rel., v. Casteel, 110 Ind. 174; McPheeters v. Wright, 110 Ind. 519. Appellees claim that at the time Erain executed the mortgage, and at the time of the foreclosure thereof, he is shown by the specific facts to have held but an equitable title to the land, which, as they contend, he could mortgage or convey without the consent of his wife. They insist that it appears from the specific averments of the complaint that, at the time (April 1, 1856) when Gwin is alleged to have conveyed by warranty deed to Frain the former was not invested with the legal title; that said title still remained in the board of canal trustees, and was not conveyed to Gwin by that board until December 3, 1857; and counsel for tippellees contend, adversely, however, to the contention of appellants’ counsel, that this after-acquired title by Gwin did not inure to the benefit of Erain by relation back to the time when Gwin, under his deed of general warranty, as stated, conveyed to Erain. They insist that the fact that the board of trustees conveyed the legal title to Gwin on December 3, 1857, after the decree of foreclosure was rendered, but before the sale thereunder, can in no manner be available to aid or support appellants’ cause of action. Appellees say: “When Gwin acquired the legal title, Erain’s equitable title had, by relation, passed to the purchaser under the decree of foreclosure as of the date of the mortgage, and necessarily Gwin held the — 63 — naked title in trust, not for Erain, but for the bolder of the equitable title, the purchaser at the.foreclosure sale.” But if it can be said, under the facts, that Gwin was not invested on April 1, 1856, when he executed his deed of conveyance to Erain, with the legal title to the land, and did not acquire such title until December. 3, 1857, still these facts will not serve to defeat the interest of appellant which she claims as the surviving wife. If Gwin, - when he executed his deed to Erain, was not invested with the legal title, but subsequently acquired it by a deed from the board of trustees, then the effect and operation, in contemplation of law, of the covenants of warranty'in his deed to Erain, would, by relating back, actually transfer to and vest the after-acquired title in Erain, as though it had passed to him by Gwin’s deed in the first instance, and Erain could be said, in the eye of the law, to have been seized in fee simple of the real estate on and from April 1, 1856, the date of the execution of the deed by Gwin to him, and the interest of his wife attached as of that date, subject to the mortgage for purchase money. That such would be the result, we think, is settled by a large majority of the authorities. The law will not only treat the after-acquired title as being in the former grantor in trust for his grantee, and hold him estopped from asserting it as against the latter, or others claiming through him, but it will consider and treat it as though it had actually passed at the time of the conveyance under the warranty deed. 19 Am. & Eng. Ency. of Law, pp. 1021, 1022, and the many cases cited in foot-note 1 on p. 1022. In 2 Devlin on Deeds (2nded.), section 946, the author says: “Where covenants for title are contained in the deed, the after-acquired title will pass with the same effect as if it had originally been conveyed to the grantee and his successors.” Citing many eases in support of the text in foot-note 4. Wash-burn, in his work on Real Property, Vol. 3, 119, states the rule as follows: “The title acquired by the grantor who has conveyed by warranty inures eo instanti that he gains the — 64 — title to his grantee and vests in him.” Rawle asserts the same doctrine, as follows: “As a general rule, any after-acquired title will inure by virtue of the warranty to the party claiming under such warranty with the same effect as if it had originally passed.” Rawle Covenants of Title (3rd ed.), p. 412, et seq. Maupin, in his work on marketable titles to real estate, section 213, says: “It seems to be established in America that the effect of an estoppel arising from the covenants or recitals by the grantor in his deed, is to actually transfer the after-acquired estate to the grantee, so as to obviate the necessity of a second conveyance of the premises.” The following authorities also support or affirm this doctrine: 2 Herman on Estop., section 229 et seq.; Fisher v. Hallock, 50 Mich. 463; Woods v. Bonner, 89 Tenn. 411; Philly v. Sanders, 11 Ohio St. 490. In fact, the same rule is recognized by the decisions of this court. See Booker v. Tartwater, 138 Ind. 385, on p. 391, and cases cited; Randall v. Lowler, 98 Ind. 255. It must follow, under the facts, and we so hold, that Erain became seized in fee in the lands at the time of the conveyance of Gwin to him, and that being during the coverture, the wife’s inchoate interest immediately attached upon the seizin of her husband. Both parties in this action claim through Frain. Hence the after-acquired legal title, passing, as it did, by relation back to the date of the execution of Gwin’s deed, — which we must presume, under the facts, was executed prior-to the execution of the mortgage through which appellees claim title, — -it also inured to their benefit, as, under the foreclosure sale, the legal title of the husband to the lands, subject to his wife’s rights, passed to the purchaser at such sale, and therefore such title inures to the benefit of the appellees. Appellees, then, under the circumstances, — holding as it may be said they do, the interest to which they are entitled in the lands, in fee simple, by virtue of the sale and conveyance under the mortgage to their remote grantor,- — certainly cannot be heard to assert that — 65 — Brain, the common source through whom both parties claim title, was not seized in fee simple at the time he made the mortgage in question; or, in other words, they cannot, under the circumstances, - accept the benefits inuring from the after-acquired title, and at the same 'time deny that Brain was seized in fee simple at the time he executed the mortgage. The complaint stated a cause of action, and the court erred in sustaining the demurrer thereto. The judgment is therefore reversed, and the cause remanded to the lower court.