German National Bank v. Gunther

3 Ohio N.P. 311

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: July 1, 1893
• Status: Published

Opinion

SAYLER, J.

The Coleman street property, worth proba bly 87,200, was conveyed from the husband to the wife, the wife not joining in the deed. It was incumbered to about 85,800, including 8200 owing to the wife. No money was paid by the wife, conveyance being in consideration of the debt from the husband to the wife.

The inchoate right of dower of the wife in Jie property is estimated at 81,000. Can this be considered in determining whether the wife paid a fair value for the property?-

It is held in 32 Ohio St. 320, that an inchoate right of dower in a whole tract of land may be a consideration for the conveyance of a part of the tract to her, in consideration that she will release dower in the balance on a sale to a third party.

The wife refused to release her dower in the part sold, unless the balance was conveyed to her. The court held she had the right to refuse, except on conditions, and the balance being conveyed to her, the court held, that the rights in the whole property was a good and valuable consideration for such conveyance. -

But that is not this case. Here the property was conveyed to her in consideration of her releasing dower in other property. The husband was indebted to her, and conveyed the property to her to secure the debt. She did not release her dower right; and she still holds it. ' It cannot betaken by creditors. But the property — aside from the 8200 secured —must be treated as though the sale to her had not been made; it may be sold to pay creditors, either subject to her dower right, or free of her dower right, and the amount of her inchoate interest paid to her out of the proceeds.

I think the evidence is sufficient to establish that the wife had a valid claim for S200 against her husabnd, and I think the deed was given to her to secure it, and that she had a lien for the amount w.th interest from 1882.

The mortgages to the Citizens’ Building Association, Regina Dengenhorst and Franceska Stoender are not contested.

A decree may be taken declaring the deed to be a mortgage, and ordering the sale of the property for the purpose of paying debts.

Stephens, Lincoln & Smith and Yaple, Moos & McCabe.

Scott Bonham.