Rausch v. Moore

Rothrook, Ch. J. I. The verification to the petition is in these words: 1. VERIFICATION: att. “I, Gr. S. Eldridge, being duly sworn, on oath say that I am the agent of the plaintiff in the foregoing petition for the collection of the debt declared on in the above petition; that I have read the foregoing petition and know the contents thereof; that, as attorney for the late William Rausch, I obtained the judgment herein declared on, and am more conversant with the facts alleged in said petition! than is plaintiff himself, and the facts therein stated are true as I believe. “And I further depose and say, that the facts alleged as grounds for the issuance of a writ of attachment are known to me, and said allegations are true. ” Section 2613 of the Code provides “that if the statements of a pleading are known to airy person other than the party, such person may make the affidavit, which shall contain averments showing affiant competent to make the same.” Measured by the requirements of this section, we think the foregoing affidavit was- sufficient. As to the facts set forth as the ground for the attachment, there can be no question. [613] The affidavit sets forth that these facts are known to affiant, and that they are true. No further showing of competency is required than a personal knowledge of the facts as to the existence of the judgment, and the fact that it is unpaid. We think a showing that affiant was the attorney who obtained it, and is now the agent for its collection, and that he is more conversant with the facts than plaintiff, who isv an executor,' is a sufficient showing of competency, and fully as satisfactory as if made by the plaintiff. „ 2. ATTACHcEargeon8" practice.' II.' It is urged by counsel for appellant that it was not competent ‘for the court to entertain the second i ground of the motion to discharge the attachment The argument is that- the statute does not contemplate a summary trial of the title or ownership of real estate on motion and affidavits in a suit by-attachment. Section 3018 of the Code provides that, “a motion may be made to discharge the attachment or any part thereof, at any time before trial, for insufficiency of statement of cause thereof, or for other cause making it apparent of record that the attachment should not have issued, or should not have been levied on all or some part of the property held. ” Thé last clause of this section is very general in its terms, and, we think, embraces all questions as to the right to levy upon the property, which may properly be determined by motion. If the title to real estate be a matter of dispute between the parties upon the facts, it could not properly be determined upon a motion, supported and controverted by affidavits. If the statements of fact contained in the motion be denied, the defendant would have to proceed in a more formal manner to try the right to hold the property on the writ. But when, as in the case at bar, the motion is not denied, and the simple question to be determined is whether the land is liable to the attachment, we see no objection to disposing of [614] it upon, the motion in a summary manner. No prejudice can? result from such a proceeding. 3__. stfwectto attachment, Lastly, it is claimed that the unassigned dower interest of the defendant in the land in question was subject to the attachment. This is the principal question in' the case. The court below held that it was not liable to be seized under the writ. Where the common law dower of a life estate is in force, the great weight of authority is that, until it is assigned or set apart to the dowress, it is not liable ■to attachment on execution, in a suit at law by a creditor of the widow. Counsel for appellant concedes that' 'this rule is. supported by a majority of the cases. We need not take the space to make citations. The rule, upon examination, will be found to be nearly uniform in the courts of England and this country. ■ It is insisted however, that in the case at bar the defendant, as widow, is entitled to one-third in fee simple of 'the land in controversy; that the descent was cast at the death of the husband, and that she is a joint tenant with the children of her husband, and for these reasons the rule applicable to common law dower should not apply. The defendant’s husband died in 1864, seized of the land. The dower right was fixed by section 1, chapter 151, Laws of ¡1862, which provides that “one-third in value of all the real i estate, in which the husband at any time during the marriage . had a legal or equitable interest, * * * * * * shall, I under the direction of the court, be set apart * * * * * as her property in fee simple. * * * * * *” We have held that this statute did not abolish or take away the estate of dower, but that it merely enlarged it from an estate for life to a fee simple. Moore v. Kent, 37 Iowa, 20; Kendall v. Kendall, 42 Id., 464. If, then, the fee simple estate given by the statute is merely the common law dower estate enlarged, we can see no reason why it should be subject to execution or attachment in a suit [615] at law, before assignment, in the one ease, and not in the other. All the incidents of dower attach to the fee simple estate, the same as to the life estate, the only difference being duration. It must be remembered that the statute above cited did not abolish the estate of dower, but, on the contrary, expressly recognized it by providing that “all the provisions hereinbefore made in relation to the widow shall be applicable to the husband of a deceased wife. Each is entitled to the same right of dower in the estate of the other. * * *” Whether the provision which the Code makes for a widow out of the lands of her deceased husband creates an estate liable to be seized upon attachment in a suit at law we do not determine, as the question is not presented. It may not be improper to observe, however, that although by section 2440 of the Code the estate of dower is abolished, and in section 2441 the estate given to the widow is designated as “the distributive share of the widow,” yet under the Code, as well as under the act of 1862, it is a materially different estate from that derived by descent. The estate of an heir is an undivided interest in each and every tract of land owned by the ancestor at the time of his death. Subject to the debts of the ancestor, it may be levied upon by execution or attachment, and sold as the property of the heir. The estate of the widow embraces one-third in value of all the real property owned by the husband at any time during the marriage which has not been sold on execution or other judicial sale, and to which she has made no relinquishment of her right. It cannot be defeated by will. It is not liable for the debts of the husband. It must be so set off as to include the ordinary dwelling-house, unless she prefers a different arrangement. It may all be assigned and set off in one or more tracts. It is, therefore, obvious that the levy of an execution or attachment upon the lands of which the husband died seized, [616] may or may not be a levy upon that part which may be set off to the widow as her share. We do not determine what, if any, remedy the creditor of a widow may have as against her unassigned dower. The question is not presented in- this record. We only determine that the settled rule that dower unassigned is not liable to execution or attachment in a suit at law was not changed by the statute of 1862 above cited. Affirmed.