Haggerty v. Wagner

39 L.R.A. 384, 48 N.E. 366, 148 Ind. 625, 1897 Ind. LEXIS 263

• Court: Indiana Supreme Court
• Decided: November 4, 1897
• Docket: No. 17,918
• Status: Published

Opinions

McCabe, C. J.

Appellee sued tbe appellant in tbe Superior Court for partition of lots 16 and 17 in Hannaman’s south addition to tbe city of Indianapolis and to quiet ber title to ber alleged proportion thereof. Tbe action was commenced May 3, 1894.

The issues formed were submitted to, and tried by the court, resulting in a special finding of facts, upon which the court stated conclusions of law favorable, to the plaintiff. Judgment was rendered pursuant to the conclusions of law, in favor of the appellee.

The conclusions of law are assigned for error.

The material facts found are, in substance, that appellee, Mary J. Wagner, and said Peter Wagner were married on November 22, 1855, in Clay county, Indiana, where they lived together as husband and wife until May 11, 1887, when said Peter died intestate, leaving an estate of less than $5,000.00, and left surviving him said Mary J., as his, widow, together with five children.

At and prior to May 16, 1856, said Peter Wagner, the husband of appellee, was the owner in fee simple of an undivided interest in a tract of land of about six acres situated in Marion county, Indiana, out of which the lots in dispute have been carved. At said date, he and some ten other persons held the aforesaid tract, undivided, as tenants in common. On said May 16, 1856, proceedings for partition were instituted by said Peter Wagner, and others of his co-tenants’, against their co-tenant, George Wagner, in the common pleas court of said county. At the trial of that cause the. land sought to be partitioned was found not to be susceptible of division, and the same was by the court ordered to be sold as an entirety, and David S. Beaty was appointed a commissioner to mate the sale thereof; and, in pursuance of such order, he sold said real estate to William Smith and executed to him a commissioner’s deed for the same, which deed was approved by the court and duly recorded, and the proceeds arising from the sale were paid to and divided among the parties to the action according to their respective shares and rights. The appellee, the wife of said Peter at the time said former action for partition was commenced, was not in any manner made a party plaintiff or defendant to said action, nor did she join in any manner therein, neither was she notified of the pendency thereof, and had no knowledge of said partition proceedings until after the death of her said husband. She never joined her husband at any time in the conveyance of any part of said real estate, nor in any manner or form did she dispose of her inchoate interest therein by her own act. Through mesne conveyances from said Smith and his grantees, appellant, Patrick Haggerty, was seized by deed of conveyance of said lots 16 and 17.

The conclusions of law are to the effect that appellee, Mary J. Wagner, is the owner of a moiety of the undivided one-third of her deceased husband’s interest in said real estate, and that appellant, Patrick Haggerty, is the owner of the residue thereof.

The ground upon which the conclusion that appellee, Mary J. Wagner, is the owner of a moiety of the real estate in question is based, as we learn from ap- ' pellee’s brief and a written opinion filed by the learned ' judge of the trial court, is, that by failure to make her a party to the prior partition proceedings, her inchoate interest in said lands as the wife of Peter Wagner, was not extinguished by the partition sale. The question thus raised is a new one in this court, the same never having been directly decided before, nor has the question ever previously been before or considered by this court.

The question has been considered and decided by other courts of last resort under statutes somewhat similar to our own. Some of those courts have decided the question one way, and some the other. We therefore feel called upon to consider the question upon principle before reviewing the decisions.

The question primarily is this: Is it necessary in a partition suit between co-tenants, where one of the co-tenants has a wife living at the time the partition proceedings are had, to make such wife a party thereto in order to make such proceedings binding on her in case she outlives her husband and becomes his surviving widow? The discussion has taken a wide range, involving a consideration of various statute's.

Great stress is laid upon section 2652, Burns’ R. S. 1894 (2491, R. S. 1881), which was in force at the time the prior partition proceedings took place. It provides, among other things, that “A surviving wife is entitled, except as in section seventeen [section 2483] excepted, to one-third of all 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.” The only exception in section 17 is in favor of creditors where the real estate exceeds in value $10,000.00, in which case the widow as against such creditors only takes one-fourth, instead of a third, and where such real estate exceeds in value $20,000.00 she takes as against such creditors one-fifth, instead of a third. These exceptions have no application to the facts in this case, and hence no bearing.

The sweeping language that she is entitled to one-third of all 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, is subject to exceptions not mentioned in the statute of descents, which arise out of other laws and the evident intent of the legislature. For instance, it has no force where the husband’s title was divested before the section took effect. Taylor v. Sample, 51 Ind. 423. And where-liens existed on the lands at the time the marriage took place, such liens may be enforced so as to extinguish her inchoate interest in the land, even though she do not join with her husband in any form of conveyance of the land. Armstrong v. McLaughlin, 49 Ind. 370; Eiceman v. Finch, 79 Ind. 511. And the same is true where the lien existed at the time the husband became seized of the land. Kissel v. Eaton, 64 Ind. 248; Godfrey v. Craycraft, 81 Ind. 476; Vandevender v. Moore, 146 Ind. 44.

And so it has been held by this court, and correctly, we think, that where land was conveyed by its owner to another, so that the other could mortgage it to the school fund to secure a loan for the benefit of the grantor, and then such grantee conveyed the land back to the grantor, without the wife of such first grantee joining in the conveyance, and afterwards he died, leaving his wife surviving him, she was not entitled under this section to any part of such land, though she came within the very letter of the statute; because, in analogy to the common law inchoate right of dower, the seizin of the husband was only instantaneous, and hence insufficient to create the inchoate right. Johnson v. Plume, 77 Ind. 166.

Again, where real estate is appropriated upon compensation in the exercise of the power of eminent domain, or in case of the dedication of lands of the husband to public use in making highways, canals, railroads, streets and the like, the inchoate right of dower, or its substitute, the inchoate right of the wife to one-third in fee simple in her husband’s lands, is extinguished without her joining in any deed therefor, or being made a party thereto in any manner or form. Duncan v. City of Terre Haute, 85 Ind. 104; City of Indianapolis v. Kingsbury, 101 Ind. 200.

In the first one of the two cases last cited above, it is said, on pages 106 and 107, that: “The courts of this country seem to have uniformly held, when the question has come before them, that when lands are appropriated by the exercise of eminent domain, or what is said to be equivalent to it, the dedication of lands to public use, the dower of the wife is defeated. Guynne v. City of Cincinnati, 3 Ohio 24, 17 Am. Dec. 576; Moore v. Mayor, etc., affirmed in the court of appeals, 8 N. Y. 110; Jackson v. Edwards, 7 Paige 386; 1 Scribner, Dower, pp. 550 to 555. Dillon in his treatise on Municipal Corporations (2d ed.), section 459, says: ‘As dower is not the result of contract, but is a positive legislative institution, it is constitutionally competent for the legislature to authorize lands to be taken by a municipal corporation for a market, street, or other public use, upon an appraisement and payment of their value to the husband, the holder of the fee, and such taking and payment will confer an absolute title divested of any inchoate right of dower. Nor is a widow dowable in lands, dedicated by her husband in his lifetime to the public, where the dedication is complete or has been accepted and acted upon by the municipal authorities.’

“Washburn, in treating of the various modes in which dower may be defeated, says: ‘One mode in which dower may be defeated remains to be mentioned, and that is, by the exercise of eminent domain during the life of the husband, or, what is equivalent to it, the dedication of land to the public use.’ 1 Washb. Real Prop. (4th ed.), p. 269.

“In Moore v. City of New York, 4 Sandf. 456, the court, in speaking of a.former decision says: ‘We then held that the wife’s right of dower was merely inchoate during the life of the husband, and that she had no vested or certain interest in his lands. The right being merely an incident to the marriage relation, it seems to us that while this right is thus inchoate, and before it has become vested by the death of the husband, any regulation of it may be made by the legislature, though its operation is in effect to divest the right; the marriage relation itself being within the power of the legislature to modify, or even abolish it’ ”

These several exceptions to the full force and effect of the section of our statute of descents quoted above, manifestly arise out of other statutes and laws creating rights in other persons paramount to the inchoate right of the wife in the lands of her husband.

Dower having been abolished by the revision bf 1852, it has often been said by this court that the provision made for the widow in her husband’s real estate by the same revision was a substitute for dower, and many of the rules that had been previously applied to dower have since been applied to the substitute. Two provisions in favor of the widow, in lieu of, or as a substitute for dower in her husband’s real estate, have been made by the revision of 1852, and since re-enacted and now in force. One of them is the section already quoted, and the other is the old section 17 of our statute of descents. Section 2640, Burns’ R. S. 1894 (2483, R. S. 1881). This section provides that “If a husband die testate or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple,” etc. The widow takes under this section as heir of her husband. Rusing v. Rusing, 25 Ind. 63; May v. Fletcher, 40 Ind. 575; Bowen v. Preston, 48 Ind. 367; Brown v. Harmon, 73 Ind. 412; Derry v. Derry, 74 Ind. 560; Hendrix v. McBeth, 87 Ind. 287. But the widow does not take under section 27, old number, section 2652, Burns’ R. S. 1894 (2491, R. S. 1881), first above quoted, as heir, but by virtue of her marital rights. Bowen v. Preston, supra; Brannon v. May, 42 Ind. 92; Johnson v. Miller, 47 Ind. 376; Hendrix v. McBeth, supra; McKinney v. Smith, 106 Ind. 404. And, therefore, the interest the widow takes under said section is more like dower than the interest which she takes under the other section, where it provides that one-third of her husband’s real estate shall descend to her. This provision impliedly requires that her husband shall die seized of the real estate mentioned therein, because it could not descend from him to her if he did not die seized of it. The other section, and the one here involved, only requires it to be 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. That was the precise quality of dower at common law, except that it was a life estate in one-third of all lands “as were her husband’s at any time during the coverture.” 1 Greenleaf’s Cruise on Real Prop., star p. 165.

In Johnson v. Plume, 77 Ind. 166, being a case where the surviving widow was asserting her right to land once owned by her husband and in the conveyance of which she had not joined him, founding her claim on the same section relied on by the appellee here, this court, after quoting the section, said: “By the terms of this statute a surviving wife is entitled to one-third of all the real estate of which the husband was seized at any time during the marriage, and in the conveyahce of which she did not join. The appellee’s husband was seized of the land in dispute, and as she did not join him in the conveyance made to James Gal-lately, she is within the letter of the statute; and, if the statute is to be literally construed, her claim must prevail. At the common law a widow was entitled to dower in all lands of which her husband was seized at any time during coverture, and in the conveyance of which she did not join. This was the law in this State before the present statute was enacted. Since its enactment she is entitled to a third in fee. The statute merely enlarges her rights, by substituting a third in fee for a dower interest, but does not otherwise change them; therefore, she cannot claim a third in fee in any lands in which she could not have claimed dower before the adoption of the statute. At the common law she could not claim dower in lands held by her husband, as trustee, nor in such as he held by instantaneous seizin. These rules apply under the statute, and, if the appellee’s husband’s seizin was instantaneous, or that of a trustee, she cannot recover.” As before observed, it was held that the seizin of the husband was for a particular purpose, and therefore a mere instantaneous seizin, and hence she could not recover.

ISTo reason has been suggested, nor can we think of any, why the inchoate right of the wife of a co-tenant of real estate may not be extinguished by a partition sale without making her a party, as well as in cases where the husband’s title is divested before the section took effect, in cases where liens existed on the land at the time the marriage took place, in cases where liens on the land existed at the time the husband became seized, in cases where his seizin was only for a temporary purpose, and in cases where the husband’s land is appropriated upon compensation in the exercise of the power of eminent domain, or in cases of the dedication of lands of the husband to public use in making highways, canals, railroads, streets, market places,-cemeteries and the like.

But it is earnestly and ably contended by appellee’s learned counsel that another section, 2660, Burns’ E. S. 1894 (2499, E. S. 1881), imperatively requires the wife to be made a party in such a case, or the proceedings will be void as to her. That section- was in force when the prior partition proceedings took place, and it reads as follows: “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 to her jointure, or preclude her from the recovery thereof, if otherwise entitled thereto.” It is not claimed, as it could not reasonably be, that the first clause of the section is applicable to the case. "

But the last clause is relied on with great confidence by the appellee. It is earnestly insisted that the latter clause expressly provides that no decree to which she shall not be a party “shall pejudice or extinguish the right of the wife to her third in his (her husband’s) lands.” Plain and imperative as this language is, it must receive a construction. Because, as we have already seen, this court has held in the various cases above mentioned that the wife’s inchoate interest in her husband’s land may be extinguished by proceedings to which she was not a party; and this, too, while the section just quoted was in full force. This section must be construed along with a section of the code of civil procedure hereinafter referred to, and relied on by appellee as establishing the law as to necessary parties in partition proceedings.

The reason why the two sections must be construed together is that they relate to the same subject, namely: necessary parties to actions resulting in judgments and decrees. The reason why this section cannot be so construed as to require persons to be made parties who are unnecessary, is, that to do so brings it into conflict with the section of the code already referred to.

The law requires us to construe these two sections m pari materia, and to give effect to each if possible. State v. Rackley, 2 Blackf. 249; Indiana Central Canal Co. v. State, 53 Ind. 575; Stout v. Board, etc., 107 Ind. 343.

To construe the section last quoted so as to require persons to be made parties who are unnecessary parties, is to bring it into conflict with the section of the code referred to. But it may be harmonized with that section by construing its requirements as to parties to relate to such parties, ajid to such parties only, as are necessary parties. Any other construction requires us to conclude that the legislature intended to declare by law that in certain cases persons should be made parties to certain actions who are wholly unnecessary, and that a failure to make unnecessary parties should cause the overthrow of the judgments and decrees of the courts in such proceedings. It is too clear for controversy that the legislature had no such intention.

And the inquiry naturally arises, why is it not necessary to make the wife a party when her husband’s land is to be taken to make a public highway, or when the same is to be appropriated upon compensation for a railroad right of way? The only answer to this question is that if she were made a party there is nothing that she could do to protect her inchoate interest. There is no answer she could make that would qualify or prevent the appropriation. She could only answer, “I am the wife of the owner” and that fact would be disclosed by the complaint, if she were made a party. ' There is no issue she could tender, and no issue could be tendered to her. Therefore, if she were made a party to such a proceeding, she would not be a party to any issue, nor could she, as such a party, do anything to protect her inchoate right.

The cases to which we have referred show that the section last cited has not been given such a broad scope in meaning by this court as to allow a surviving wife to recover her third in lands of her husband, taken without her becoming a party thereto, in the various modes of appropriation enumerated above, though its sweeping language would, at first blush, seem to warrant a contrary ruling. The leading idea in the section is that she must be a party to certain acts or proceedings touching her inchoate interest. It evidently was not intended by the latter clause of the section to make any new law on the subject of necessary parties. The provision was enacted in view of the law as it then and still exists as to parties. In other words, it would be absurd to suppose the legislature meant that the wife should be made a party in those cases where it could affect nothing, as well as those cases where it could. And the law requires us to adopt that construction which leads to no absurdity, if the statute is susceptible of such a construction. Mayor, etc., v. Weems, 5 Ind. 547; Storms v. Stevens, 104 Ind. 46. There are many cases within the purview of the section, if the wife was made a party, wherein it would enable her to protect her inchoate interest. But we have seen that this court has held, in the face of the section in question, that in appropriations of the husband’s land by the exercise of the power of eminent domain, or in dedication of lands for public uses on compensation, the inchoate interest of the wife is extinguished without her consent and without making her a party. This is at least an implied holding that there are cases falling within the unqualified language of the section where the wife’s inchoate interest may be extinguished without her consent and without making her a party.

This holding can only be upheld on the ground that the requirement of the section that she be made a party, without which her right is not extinguished, must be so construed as to require her to be made a party in such cases only as, if a party, she could prevent the extinguishment of her inchoate right, or in some way secure some benefit to herself on account of that right. Where she could not accomplish .any of these things if made a party, it is idle to say that the legislature intended by the section quoted to require her to be made a party, and for failure to do such an idle and nugatory act her interest should not be extinguished and the partition sale be overthrown. We shall hereafter see that it could not possibly benefit her to make her a party to partition proceedings of lands where her husband is a co-tenant, any more than in cases of appropriation of her husband’s land in the exercise of eminent domain, or in dedications thereof to public uses.

Some reliance is placed by the appellee upon the code of civil procedure to support the contention that she was a necessary party to the partition sale. Section 626, 2 Gavin & Hord, p. 288, then in force, required the pleadings and practice in partition proceedings to conform to the code. Two sections of the code as it then and now stands are relied upon to establish that appellee was a necessary party to the partition proceedings. Section 17, 2 Gavin & Hord, p. 45, provides that “all persons having an interest in the subject of the action, shall be joined as plaintiffs.”

Appellee’s husband was one of the plaintiffs in the partition proceedings resulting in the sale, but her learned counsel do not say whether she ought to have been a plaintiff or a defendant. Her counsel also quote and rely on section 18, 2 Gavin & Hord, p. 46, which provides that “any person may be made a defendant who has, or claims, an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved.” The latter clause of this section is confessedly the one, and the only part of either section, that has any bearing on the question before us. And it requires no one to be made a party defendant except he be a necessary party.

This lands us back where we started, to begin afresh with the inquiry: Who are necessary parties? We have already seen that the wife is not a necessary party to proceedings to appropriate her husband’s land, and to 'dedications thereof for public uses.

This court has indirectly decided in Paulus v. Latta, 93 Ind. 34, that she is not a necessary party either in partition suits where her husband is a co-tenant or in appropriation or dedication cases, in holding that her inchoate interest is not the subject of an action. On page 38 of that case it is said: “The appellee suggests that the complaint contains a good cause of action against Paulus to remove the cloud upon her inchoate interest as the wife of the defendant Latta. But such inchoate interest is not a present estate, it cannot be conveyed by itself. McCormick v. Hunter, 50 Ind. 186. It gives no right of entry. Strong v. Bragg, 7 Blackf. 62. It is not the subject of an action; it constitutes no diminution of the husband’s present estate; he may convey his entire estate without her, and the purchaser will hold it subject only to be divested of one-third of it on certain contingencies.” If the inchoate interest of the wife is not the subject of an action while the husband lives, it would seem to follow that it would not be the subject of a defense. And even one of the cases cited by appellee, Thompson v. McCorkle, 136 Ind. 484, affords strong support to this position in holding that, “By virtue of this statute, during the lifetime of the husband, the wife had an inchoate right in the real estate in controversy contingent upon her surviving him, and which could not become absolute except by his death. Her claim during the entire interval was in such a position that it could not be asserted by anyone. The case was not one of mere disability growing out of coverture. Strictly speaking, she had no estate in the premises, it was a mere expectancy.” If she had no estate in the premises, had nothing but a mere expectancy, which could not be asserted by anybody, what necessity was there, to make her a party? Certainly none, if we are to follow logic and'sound reason. If there was no necessity to make her a party, then she was not a necessary party within the meaning of the provisions of the code of 1852 quoted above.

Barbour on Parties, at page 330, says: “No one need be made a party plaintiff in whom there exists no interest; and no one need be made a party defendant from whom nothing is demanded. A mere contingent interest is insufficient. * * * No one need be made a party who disclaims all interest in the controversy; nor one who would not be at liberty to answer, and contest the right to the relief prayed for.” The author cites the following adjudged cases that fully support the text: Kerr v. Watts, 6 Wheat. (U. S.) 550; Bailey v. Inglee, 2 Paige 278; Lee v. Colston, 5 Monroe (Ky.) *238.

Now let us inquire whether the appellee could have affected anything in the way of the protection of her inchoate interest if she had been made a party. All the authorities on both sides of the question we are discussing agree in holding that the inchoate right of dower, or the inchoate right of the wife to one-third of her husband’s land, subsists by virtue of the seizin of the husband; and that this right is always subject to any incumbrance, infirmity, or incident which the law attaches to the seizin, either at the time of the marriage or at the time the husband became seized. A liability to be divested by a partition sale is an incident which the law affixes to all estates of co-tenants, and the inchoate right of the wife of such co-tenant is subject to this incident, unless it is superior to and independent of the husband’s title, and that would hardly be contended for by any one.

They also likewise agree that if she is made a party she cannot prevent a partition, and, in a proper case, she cannot prevent a partition sale. They also agree that in case the real estate can be divided according to the interests of the co-tenants, the decree is binding on the wife of a co-tenant without making her a party to the proceedings. It is also agreed by the authorities referred to that the wife’s interest in the husband’s share, without her presence in court, or any order of court, will at once attach to the portion set off to him. This concession carries with it the logical sequence that the wife of a co-tenant is not a necessary party to a partition proceeding, whether there is a sale or not.

But, suppose she is made a party, in such a case where a sale is to take place, what can she do? The partition statute then, and still in force, practically answers the question. It provides that: “The moneys arising from such sale after payment of just costs and expenses, shall be paid by such commissioner to the persons entitled thereto, according to their respective shares.” Section 23, 2 Gavin & Hord, p. 365. * We have seen that the wife of a co-tenant has no share in the lands of her husband while he lives. Therefore, no money can be paid to her on such a sale, even if she be made a party, unless there is some other statute or law that modifies or radically changes this statute by expanding its provisions so as to require the payment of only a part of the proportion of the proceeds of the sale due to the co-tenant, according to his share of the real estate, who has a wife, and requiring the balance to be paid to her. We know of no such statute. On the contrary, the only law that confers on her the interest she holds in her husband’s real estate is the section of the statute first above quoted. By it all her rights in her husband’s real estate of which he was seized at any time during the marriage, and in the conveyance of which she did not join, is created and conferred, and by it her rights therein must be measured and limited. And by it no right in such real estate can ever become consummate or vested in her so as to enjoy, possess, or control it, unless she becomes his surviving widow. If, therefore, any portion of it is ever handed over and' delivered to her to enjoy and possess before the happening of that event, it must be by virtue of judge-made law. And it is universally agreed that judge-made law is bad law, not because such law may not be just, but because under our system of jurisprudence, and by the constitution all lawmaking power has been carefully withheld from the courts, and exclusively vested in the legislature. See Constitution, article 4, section 1, section 97, Burns’ R. S. 1894 (97, R. S. 1881); also Constitution, article 3, section 1, section 96, Burns’ R. S. 1894 (96, R. S. 1881).

It is true that such inchoate interest, while it cannot be conveyed separate from her husband’s title, yet she may release it by joining with her hnsband in the conveyance of his real estate. And the release thus made by the wife is a sufficient consideration to support a promise to her. Jarboe v. Severin, 85 Ind. 496; Green v. Groves, 109 Ind. 519; Worley v. Sipe, 111 Ind. 238; Howlett v. Dilts, 4 Ind. App. 23; Worth v. Patton., 5 Ind. App. 272. Bnt that is the subject of contract and not the institution of the statute.

If the courts undertake to hand over to the wife a portion of the husband’s share of the proceeds of a partition sale, it may result in giving her a part of her husband’s real estate to own and control, though the event never happens upon which her right to do so is by the statute expressly made to depend, namely, to become his surviving widow. Either of two contingencies may happen by which she may never become his surviving widow. One is, she may die first; and the other is that, the marriage may be dissolved by a divorce. And yet, if any portion of the husband’s share of the proceeds of a partition sale were given her by the courts, she would be possessing and controlling it in violation of the statute th'at creates, measures and limits her rights in her husband’s real estate.

It was wisely supposed by statesmen and lawyers that it required an express legislative enactment to make the inchoate interest of the wife become abs.o-lute and vest in her during the life of the husband, as seen by the act of 1875, in case of judicial sales of her husband’s real estate. Section 2669, Burns’ R. S. 1894 (2508, R. S. 1881).

That act does not apply to this case so as to enable the courts to give the wife a portion of the husband’s share of the proceeds of a partition sale, for two reasons. First, it was not in force when these proceedings took place; and, secondly, the second section thereof provides that it shall not apply to sales of real estate upon judgments rendered prior to the taking effect of the act; nor to any sale of real property of the value of $20,000.00 and over, nor to the sale of real property of the aggregate value of $20,000.00 and over, except to so much of such real property as shall not exceed in value the sum of $20,000.00; thus indicating the legislative intent to deal with creditors’ judicial sales, and not partition judicial sales.

So the conclusion seems absolutely irresistible that there is no law in this State authorizing the courts to award to the wife of a co-tenant any portion of her husband’s share of the proceeds of a partition sale. On the contrary, the express provision of the partition statute, then and now in force, imperatively requires, as we have seen, that the whole of his proportion of the proceeds of the sale, according to his share in the real estate, shall be paid over to him.

Therefore, the latter clause of section 2660, Burns’ E. S. 1894 (2499, E. S. 1881), which is the same as section 35 of the law of descent of 1852, providing that no “Sale, disposition, transfer, or incumbrance of the husband’s property, by virtue of any decree, * * * to which she shall not be a party, *■ * * shall prejudice or extinguish the right of the wife to her third in his lands,” etc., must be held to have no application tó a case .like the present, where to have made her a party could not have availed her anything, and to apply only to such cases as would have been of some possible benefit to her to have made her a party.

Some Of the authorities, in view of this line of reasoning, intimate that her inchoate interest cannot be extinguished by a partition sale, whether she be made a party or not. Whether it can or not must be determined by a consideration of the probable legislative intent as disclosed in the several statutes referred to. To hold that it could not, would involve the necessity of holding that the mere inchoate right, the mere expectancy, the mere possibility of a vested or consummate estate, without ever vesting or becoming consummate, may destroy the absolute vested estate of the husband, or a part of it. If such a sale cannot extinguish her inchoate right, even though she be made a party, then her husband’s interest must sell for much less, perhaps a third less than its actual value. She may die before her husband, or be divorced, in either of which cases her inchoate interest is gone, and one-third in value of. her husband’s interest is gone for nothing; in other words, it is destroyed by trying to keep alive a mere possibility of an estate in her. This brings us to the question as to whether one of these rights is paramount to the other. The authorities holding that a partition sale extinguishes the wife’s inchoate right, hold that the right to partition in a co-tenant is paramount to the inchoate right of the wife, for the reason, we presume, that her interest or right exists by virtue of her husband’s seizin, and therefore, is subject to the incidents, incumbrances and infirmities attaching to that seizin, the right to compel partition by sale being one of the incidents attaching to such seizin. But there is another reason why the right to partition by sale is paramount to the inchoate right of the wife, of a co-tenant, and that is the co-tenant’s title is an actual present existing estate in the real property, whereas the inchoate right of the wife therein is only the possibility of such an estate accruing to the wife dependent upon uncertain future events which may never happen, and, therefore, such estate may never exist. To hold that the co-tenant’s right to partition is not paramount to his wife’s inchoate right, is to hold that a present absolutely existing estate is not superior and paramount to a mere possibility of the existence of such an estate. That a mere possibility of an estate, which may never ripen into such estate, may destroy an absolutely existing estate. In other words, it is to hold that the mere shadow may destroy the actual existing substance.

The right of partition, where a sale is necessary, and the Inchoate right of the wife of a co-tenant, cannot both exist. One or the other of these rights must give wmy and be submerged. It ought not, in reason it can not be the paramount right. Therefore, it must be the inferior right that is submerged.

In support of the contention that a partition sale, in the absence of the wife of a co-tenant as a party, was intended not to extinguish the wife’s inchoate right, we are cited to section 21, 2 Gavin & Hord, p. 365, which has been substantially continued in force by the revision of 1881. It reads thus: “Whenever it shall appear to the court that the purchase-money for the land sold has been duly paid, the court shall order such commissioner, or some other person, to execute conveyances to the purchaser, which shall bar all claim of such owners to said lands as effectually as if they themselves had executed the same.”

Great confidence in this statute seems to be entertained by appellee’s learned counsel as affording strong support to his contention. That is, that by its terms the deed in a partition sale is to have the same force and effect as if the owners themselves had executed the same, and no more. And if the owners themselves had executed the deed it could not extinguish' or release their wives’ inchoate rights therein. But it is believed that this confidence is wholly misplaced, for two reasons, at least. If the intent of the statute is to give no greater effect to the deed than if executed by the owners, then it establishes the unreasonable proposition intimated in some of the decisions that the inchoate right of the wife of a co-tenant cannot be extinguished by such a sale, even though she were made a party. Because if the deed is to have no greater effect than if made by the owners, then it is to have no greater effect than if executed by the co-tenant, without his wife, she not being an owner. If she is an ow ner, within the meaning of the statute, ,then her right is barred, for the statute makes the deed “bar all claim of such owners to said lands.” Secondly, the manifest intent of the legislature, as disclosed by an examination of the whole partition statute, was that the deed should be effectual to convey the land to the purchaser absolutely. And the language employed is sufficient to make the deed have that effect in the generality of partition sales, and such sales alone were evidently in the mind of the legislature when they em-' ployed the language they. did. And yet, a full consideration of the whole statute leaves no doubt in the mind that the intent was to make the deed effectual to convey the land absolutely to the grantee. Because everyone knows that many, very many, co-tenants are married women, infants, idiots, and persons who are non compos mentis, and, as owners, wholly incapacitated to make a deed that would convey their interest in the land. The married woman could not convey for want of her husband joining with her therein. And the strict language of the statute is that the deed is to be as effectual as if the owners had themselves executed the same. And yet, no one could be found that would contend that a partition sale and deed would be ineffectual to convey the title of a co-tenant who is a married woman, an infant, a non compos mentis-, or a lunatic, under the operation of the statute quoted. This must be so, because it was the evident intent, as gleaned from the several parts of the whole statute, that a partition sale and deed should be effectual to convey the land of the several owners absolutely, and vest the owners’ title thereto in the purchaser.

The settled law requires us to give effect to that intent, so as to make it prevail over the literal import of particular terms used, and control the strict letter of such terms when the letter would lead to injustice, as would be the case here. Smith v. Moore, 90 Ind. 294; City of Indianapolis v. Huegele, 115 Ind. 581; Lime City, etc., Ass’n v. Black, 136 Ind. 544; May v. Hoover, 112 Ind. 455; Parvin v. Wimberg, 130 Ind. 561; Storms v. Stevens, 104 Ind. 46; Stout v. Board, etc., 107 Ind. 343.

■ It follows, from what we have said, that, upon principle, the partition sale and deed in question vested in the purchaser the entire title to the real property in question and extinguished the inchoate interest of the appellee therein.

We will now consider how the question stands upon authority. It is claimed that the rule established by the courts of New York is that a partition sale does not extinguish the contingent right of the wife of one of the co-tenants. The decisions of that state are conflicting. The condition of the adjudications on the question in New York is so accurately and tersely stated by Mr. Freeman, in his work on Co-Tenancy and Partition, in section 474, at pages 630, 631, that we appropriate his language: “Hence, we find Chancellor Walworth stating that, ‘as a feme covert cannot be bound by a decree against her in a partition suit to which she is not a party, it seems to be proper, in all cases where a sale of the property will probably be necessary, that the wife should be joined with her husband as a party to the suit, so that the purchaser’s interest in the premises may not be charged with her contingent claim of dower.’ But Yice Chancellor McCoun, of New York, held that it was immaterial whether the wife was made a party to the suit or not, ‘because a decree for sale and conveyance by a master will not bar her right of dower in her husband’s share of the lands in the event of her surviving him.’ He justified ' this decision on the ground that, as nothing in the statute of that state expressly declared‘a divestment of the dower initiate of a wife of a joint tenant or tenant in common upon a sale, nothing so materially affecting her legal rights ought to be taken by implication.’ The same vice chancellor, in a subsequent case, expressed similar views, and sustained them with some very clear and satisfactory reasoning. On appeal, this portion of the vice chancellor’s decision was reversed by the chancellor, who determined: first, that the statues of the state, though containing no direct provision on the subject, clearly contemplated that the wife’s right of dower should be discharged by the partition sale, ‘and that a purchaser under the judgment or decree will be protected against any future claim on her part, both in equity and at law;’ second, that it was the duty of the court to make such disposition of the sale ‘as may be necessary to secure to the wife a fair equivalent for the value of her contingent right of dower, in case she survives her husband.’ From this decision of the chancellor an appeal was prosecuted to the court of errors. In this court the only opinions given were those of Bronson, judge, and Verplanck, senator. The former agreed with the vice chancellor, holding: first, that the wife’s right of dower was not affected by the sale; second, that the direction to invest a just portion of the proceeds of the sale for the benefit of the wife was an assumption of legislative prerogative. Senator Verplanck concurred with the chancellor. Both the judge and the senator united in the view that the decision of this question was immaterial, and the case was therefore disposed of on other grounds. So the question of the effect of a sale in partition upon the dower interests of the wives of co-tenants, in the absence of provisions of the statutes directly controlling the subject, may be considered as still unsettled in New York. Its further discussion was rendered unnecessary by the passage, in the year [1840] succeeding the final decision of Jackson v. Edwards, of a statute providing for the interest of the wife in accordance with the suggestions and directions contained in the opinion of the chancellor, to which we have before referred. But in other states where the question has arisen, the courts have been disposed to treat the sale in partition as conveying title paramount to the wife’s right of dower.” And that is what the New York statute provides for.

So it must be regarded that the New York decisions, being both ways, and no final determination of the question ever having taken place in the court of last resort in that state, the adjudications there do not place that state on either side of the question.

In Weaver v. Gregg, 6 Ohio St. 547, 67 Am. Dec. 355, it is held, in a very able opinion by Brinkerhoff, J.. speaking for the whole court, that a partition sale and deed without making the wife of a co-tenant a party extinguishes her inchoate right of dower, under statutes similar to our own, and passes the entire estate to the purchaser. Appellee’s learned counsel contend that the case just cited has been overruled by the Supreme Court of Ohio in the following cases: Black v. Kuhlman, 30 Ohio St. 196; Unger v. Leiter, 32 Ohio St. 210; Dingman v. Dingman, 39 Ohio St. 172; Mendel v. McClave, 46 Ohio St. 407, 22 N. E. 290. We have examined these cases and find they do not even touch the subject, much less do they overrule the doctrine laid down in Weaver v. Gregg, that a partition sale extinguishes the inchoate right of dower of the wife of one of the co-tenants without making her a party. The following cases hold to the same doctrine announced by the Ohio Supreme Court: Lee v. Lindell, 22 Mo. 202, 64 Am. Dec. 262; Hinds v. Stevens, 45 Mo. ; Davis v. Lang, 153 Ill. 175, 38 N. E. 635; Sire v. City of St. Louis, 22 Mo. 206; Mitchell v. Farrish, 69 Md. 235, 14 Atl. 712; Holley v. Glover, 36 S. C. 404, 16 L. R. A. 776, 15 S. E. 605.

The only case of a court of last resort holding a contrary doctrine is Greiner v. Klein, 28 Mich. 12. And this adjudication stands alone against the great current of adjudged cases in the United States. It alono supports appellee’s contention.

There is sufficient difference between the Michigan partition statute and our own to furnish some plausible reasons for reaching the conclusion arrived at by the Michigan Supreme Court, and especially as the Michigan statute was literally borrowed and copied from the New York partition statute; and at the time the Michigan decision was made the prevailing view of the New York courts was such as to lead to the Michigan decision. And yet the reasoning is very faulty by which the majority of the Michigan court reached their conclusion. An able dissenting opinion was delivered by Justice Campbell in a course of reasoning so conclusive and unanswerable as to greatly weaken, if not to destroy, the force of the prevailing opinion as authority outside of the state of Michigan.

We therefore conclude that the overwhelming weight of judicial opinion is against appellee’s contention.

Washburn on Real Property states the law thus: “The wife of a tenant in common holds her inchoate right of dower so completely subject to the incidents of such an estate, that she not only takes her dower out of such part only of the common estate as shall have been set off to her husband in partition, but. if by law the entire estate should be sold in order to effect a partition, she loses by such sale all claim to the land,, although no party to such proceeding.” 1 Washb. Real Prop. 208, *p 158.

We therefore conclude, both upon principle and the overwhelming weight of authority, that appellee was not a necessary party to the former partition proceedings, and that the sale and deed therein extinguished her inchoate right to one-third of her husband’s share therein. Hence, the superior court erred in its conclusions of law.

The judgment is reversed, with instructions to the trial court to restate its conclusions of law in conformity to this opinion, and to render judgment ac: cordingly.

Jordan, J., dissents.