Dayton v. Corser

Collins, J. These were cross appeals from the same judgment. The facts were that, under and by virtue of an execution duly issued upon a judgment obtained by these defendants against one May I. Dayton, certain real property was levied upon and sold in January, 1891. These defendants became the purchasers at such execution sale, and there was no redemption. At the time of the rendition of the judgment the debtor was the wife of this plaintiff, and so remained until her death in June, 1891. 'In the case at bar, which was brought to have set aside and vacated both the judgment and the sale for reasons which need not be stated, and also to have determined the rights of the parties in the real property so -sold, the trial court refused to interfere with either the judgment or the sale, but did adjudge that the property passed to the defendants at the sale, subject to the inchoate and contingent right of the debtor’s husband, the plaintiff, under the provisions of the Probate Code, and that upon her death he became seised in fee of an undivided one third of the same. It is this feature of the — 413 — judgment which has been assailed by defendants’ assignments of error, while the contention of plaintiff in his appeal is that the court erred in various rulings made upon the trial, and in its determination that the defendants became the owners of an undivided two thirds of the property on the expiration of the period of redemption, or acquired any interest whatever. Naturally the defendants’ appeal should be first disposed of, and the inquiry is whether the inchoate and contingent interest of a husband or wife in the real property of the other, as fixed by Laws 1889, eh. 46, subch. 3, § 64, is swept away and destroyed by a sale on execution, issued upon a judgment rendered during coverture against the husband or wife alone. The statute, which was but a re-enactment of 1878 G. S. ch. 46, § 3, provides: “Sec. 64. Such surviving husband or wife shall also be entitled to and shall hold in fee simple, or by such inferior tenure as the deceased was at any time during coverture seised or possessed thereof, one equal undivided one third (J) of all other lands of which the deceased was at any time during coverture seised or possessed, free from any testamentary or other disposition thereof to which such survivor shall not have assented in writing, but subject, in its just proportion with the other real estate, to the payment of such debts of the deceased as are not paid from the personal estate.” The remainder of the section need not be quoted, as it has no bearing on the case. When speaking of this language In re Rausch, 35 Minn. 291, (28 N. W. Rep. 920,) it was said that the provisions of the statute for the widow in the real estate of her deceased husband were rather in the nature of an enlargement than an abolishment of dower, and that this inchoate right “is of the same general nature as inchoate right of dower at common law.” Although having reference to the rights of a surviving wife, these views are equally as pertinent and applicable to a ease like this, where the statutory rights of a surviving husband are being considered; hence his rights are analogous to, and of the same general nature as, inchoate right of dower at common law. It hardly seems necessary to cite authorities to the proposition that at common law a wife could not be deprived of her dower rights in the real estate of her husband through a sale upon — 414 — execution under a judgment obtained against him subsequently to the marriage, but they may be found collected in 5 Amer. & Eng. Enc. Law, 920. And from an examination of the statute it would be impossible to conclude that a radical change in this matter had been wrought by it. There is nothing to indicate an intent to reduce or diminish the inchoate rights of a survivor; but, upon the other hand, the rule of the common law as to dower rights has been emphasized by this legislation; for, in addition to providing that such survivor shall hold in fee simple, or by such inferior tenure as the deceased had or held, an equal undivided one third of all lands of which the deceased was at any time during coverture seised or possessed, it was expressly declared that such holding should be free from any testamentary or other disposition to which the survivor had not assented in writing, subject, however, in its just proportion with other real estate, to the payment of such debts of the deceased as cannot be paid out of the personal estate. The plain meaning of this statute is that neither husband nor wife can be divested of the statutory right or interest in the real property of the other without having consented in writing. Every disposition of such real estate is covered by the language, and it is evident that, even if the words “or other disposition” were required to render the prohibition sufficiently certain, all doubt has been removed by their use. This language is broad and explicit enough to cover and include any transfer of title or disposition of the estate by execution sale. Husband and wife are given absolute protection as to the acts of either in respect to this statutory right or interest, and the statute must not be so construed as to place it in the power of a simple judgment creditor to defeat its purpose. If this were permitted, the husband or wife could, through connivance with a spurious creditor, easily circumvent the statute, and by means of an execution sale wipe out a right or interest which has been granted with great care and certainty. Again, such a construction would authorize the sale of an interest in real property which the debtor was unable to turn out in satisfaction of the debt or to dispose of in any manner. No statute should be interpreted so as to permit that to be done by indirection which cannot be accomplished by di — 415 — reet means. Nor do the statutory provisions in regard to judgments and execution sales have any bearing upon those found in the Probate Code in reference to the title to real property by descent. By 1878 G. S. ch. 66, § 277, a duly-docketed judgment is declared to be a lien on the real property of the debtor for a certain period of .time; and by section 322 the sheriff’s certificate on execution sale, if properly proved or acknowledged and recorded, operates, upon the expiration of the period of redemption, as a conveyance of the judgment debtor’s right, title, and interest in the estate, and nothing more. There is nothing in either of these sections indicating that the sale is not made subject to the inchoate contingent interest of the husband or wife. Under statutes similar to our own it has been held repeatedly that the inchoate right to dower attaches at the moment the husband’s interest in the realty becomes fixed, during coverture, so that his creditors cannot by any proceeding against him impair or destroy the right. Tate v. Jay, 31 Ark. 576; Nance v. Hooper, 11 Ala. 552; McMahon v. Russell, 17 Fla. 698; Wright v. Tichenor, 104 Ind. 185, (3 N. E. Rep. 853;) Sisk v. Smith, 6 Ill. 503; Sutherland v. Sutherland, 69 Ill. 481; Grady v. McCorkle, 57 Mo. 172; Gould v. Luckett, 47 Miss. 96. A later decision—Stewart v. Ross, 50 Miss. 776—that a sale of a wife’s land under execution defeats the husband’s right of curtesy is based upon the statute in regard to this right. As section 64, supra, provides that the statutory interest in question shall be “subject, in its just proportion with the other real estate, to the payment of such debts of the deceased as are not paid from the personal estate,” it has been urged as a strong reason for adopting the views of defendants’ counsel that the creditor who neglects to prosecute his claim, and upon the decease of the debtor files the same in the probate court, has a lien upon the entire estate, and may have it sold to satisfy his claim, free from the statutory right or interest, thus having an advantage over the diligent creditor who procures a judgment and makes sale upon execution during the lifetime of the debtor; but this line of argument has no real merit. If title to real property has been divested during lifetime by sale on execution, it is evident that a general creditor has no enforceable claim — 416 — upon that part of the same appropriated by statute to the surviving husband or wife, for it was held in Goodwin v. Kumrn, 43 Minn. 403, (45 N. W. Rep. 853,) that only the interest of the wife in the lands owned by her husband at his decease — and consequently a part of his estate — could be rendered subject to his debts. The statute may be inconsistent in some respects, and present practical difficulties, but the lien or claim of the general creditor upon the statutory right or interest of the survivor is not without limit or qualification ; and whatever this lien or claim may be, and to what extent it may be satisfied out of the statutory right or interest, is to be first determined in the probate court, in case the personal estate be insufficient to satisfy the debts of the deceased. This disposes of defendants’ appeal, and we proceed to a brief consideration of such assignments of error made by plaintiff’s counsel as need to be mentioned. The issue of law which would have been raised if counsel had been allowed to interpose a demurrer to the amended answer was precisely the issue determined upon the trial in plaintiff’s favor, and which we have just held to have been correctly decided. There are several reasons why the court was justified in its ruling, but it is enough for us to say that the plaintiff was not prejudiced by it. The ruling on plaintiff’s application for a continuance, based solely on the ground that the issue was not made until after the first day of the term, was correct. The pleadings were filed and served in strict accordance with a stipulation in which it was agreed that the case should be tried at the March term of the court, but not earlier than the 20th day of the month. The contention that testimony should have been received as to an oral agreement between plaintiff and his wife that she should receive and hold the title to the property herein involved in trust for him has no merit. Conceding, even, that such testimony would have been admissible under any circumstances, it appeared from the testimony of the plaintiff himself, in immediate connection with the rulings by which this oral testimony was excluded, that the trust agreement had been reduced to writing, and counsel reserved the right to offer the instrument in evidence later on. It was not produced, nor — 417 — was attempt made to put it in evidence, until after the case was closed. A motion to reopen for the purpose of putting the document in evidence was then denied upon the ground that the case was closed, and no exception was taken to the ruling. As to both parties the judgment is affirmed. (Opinion published 53 N. W. Rep. 717.)