Mayhugh v. Rosenthal

Taft, J. The main question to be considered on this finding is, whether Geo. W. Mayhugh, by seven years’ absence unheard of, lost the control of his real estate in Cincinnati, so that his wife and children could sell and transfer it without the interposition of a court. Such an absence was prima facie evidence of his death. Greenleaf’s Ev., secs. 83, 41. Acting upon that evidence, the wife and children .■ undertook to convey the title of his real estate; and relying upon that evidence, Robinson took their deed, and paid a consideration for it by the transfer to them of a farm. If the children and the wife had applied to the probate court for letters of administration they would have been granted, and an order of sale made on the application of the administrator would have been valid by the judgment of the court, and would probably have been conclusive as to the title conveyed. Newman v. Jenkins, 10 Pick. 515, 516. But, without any action of the court, it seems to a majority of the court that the title remained in Mr. Mayhugh, and could not be taken or conveyed away from him by his wife or his children. The prima facie evidence of his death disappeared on his return alive to his home in Cincinnati. i The presumption of death, arising from seven years’ absence unheard of, is not absolute but prima facie only. We find nothing in the text books or in*the reports to sustain a-stronger presumption than that. Our attention has been called to the statement of a case which has recently arisen in Massachusetts, contained in an opinion of Mr. H. N. Sheldon, published in the October number of the American Law Register, 609, where, after an absence of the husband, unheard of, for more than seven years, the wife married again and lived with the second husband until he died. The heirs of the second husband and the widow by mutual agreement settled the estate, assigning to her a portion of the property, and executing deeds mutually to each other. After all this the first husband returned. The heirs of the second husband sought to set aside the arrangement they had made with the widow, on [496] the ground that she was not the legal wife of the second husband. Mr. Sheldon regards the arrangement as a fair compromise, and as such,to be upheld. Nor does he think that the court would consider the validity of the marriage after the decease of the parties to it. This principle has been acted upon in several cases. Campbell v. Corley, 21 L. J. Mat. Cas. 60; Crapsey v. McKinney, 30 Barb. 47; White v. Lowe, 1 Redf. Sur. R. 376, and several other cases to the same effect. Ve think that the opinion of Mr. Sheldon, as expressed in the article referred to, would be found to be correct if it should come to a judicial decision. But it would not be an authority in this case, in which both husband and wife were living, and in which there is not the feature of a compromise of doubtful rights. We can find no principle or precedent on which to sustain the validity of the sale and transfer of the real propperty of Mayhugh in his lifetime, without his consent or the interposition of a court. The plaintiff, Mayhugh, is entitled to a judgment for the property, subject., however, to the right of Robinson, or the defendant, Rosenthal, to the benefit of the occupying claimants’ law, in regard to the permanent improvements which have been put upon the premises by Robinson or Rosenthal. Robinson, who purchased the property, and paid the consideration, partly in money and partly by the conveyance of a farm, has .brought a suit against the sons and wife of Mayhugh, the plaintiff", and against Mayhugh, himself, for relief in respect to the consideration paid by him for the property in question. As the last-mentioned case is not before us, we can not now decide what relief can be-granted upon his petition. The pendency of that case, howevqr, furnishes no reason why the plaintiff in the present case should not recover his property. On the contrary, the final judgment in this case will furnish a basis of adjudication in that. [497] Judgment will be entered, in favor of the plaintiff as already indicated.