Pollock v. Columbia Bank

214 N.W. 363, 193 Wis. 389, 1927 Wisc. LEXIS 283

• Court: Wisconsin Supreme Court
• Decided: June 20, 1927
• Status: Published

Opinion

Crownhart, J.

It is contended by the appellant, Mary D. Pojlock, that as her dower and homesteád rights in the land in question had not been admeasured and assigned to her, as provided by statute, the Columbia Bank acquired no title thereto by mortgage conveyance and foreclosure sale.

We will content ourselves by deciding the simple question here in issue: May a widow, before her dower interest has been admeasured and assigned, convey the, same in equity to a stranger so as to entitle the grantee to be subrogated to the rights of the widow to admeasurement and assignment of her dower interest? The decisions of the courts are not entirely harmonious, but the great weight of authority is to the effect that dower is assignable ■ in equity and that the assignee may have admeasured and assigned to him such dower interest. 9 Ruling Case Law, p. 594, § 35, states the rule:

“. . . But, like other choses in action which were not assignable at the common law, equity will recognize her assignment, and the assignee can, maintain a bill in equity to enforce the right of dower.” See, also, 19 Corp. Jur. 536.

In Dobberstein v. Murphy, 64 Minn. 127, 66 N. W. 204, the court said:

“Whatever may have formerly been the rule, there is now ample authority for the doctrine that a consummate right of dower, although still unmeasured, is assignable, and that under the Code the assignee can maintain an action in his own name for its admeasurement. And so far as this doctrine is concerned, it is immaterial whether unmeasured dower be deemed an estate in the land or a chose in action entitling the owner to an estate in the land. It is a vested right of property in an interest in the 1'and, both assignable and enforceable.”

See, also, Flowers v. Flowers, 84 Ark. 557, 106 S. W. 949; McMahon v. Gray, 150 Mass. 289, 22 N. E. 923; Wilson v. Roebuck, 180 Ala. 288, 60 South. 870; Johnston v. Loose, 201 Mich. 259, 167 N. W. 1021; Mutual L. Ins. Co. v. Shipman, 119 N. Y. 324, 24 N. E. 177; Tucker v. Tucker, 100 Tenn. 310, 45 S. W. 344; Parton v. Allison, 111 N. C. 429, 16 S. E. 415; Fletcher v. Shepherd, 174 Ill. , 51 N. E. 212; Herr v. Herr, 90 Iowa, 538, 58 N. W. 897.

Counsel for appellant cite as opposed to this view Howe v. McGivern, 25 Wis. 525; Farnsworth v. Cole, 42 Wis. 403; Munger v. Perkins, 62 Wis. 499, 503, 22 N. W. 511; and Estate of Johnson, 175 Wis. 248, 185 N. W. 180. None of these cases, under the facts before the court, is applicable. In the Howe Case, supra, the court held that unassigned dower could not be transferred by deed to a stranger so as to permit such stranger to set up the conveyance as a defense in ejectment. In the Farnsworth Case, supra, the question here presented was not involved. In the Munger Case, supra, the court held that the joinder of the wife with her husband in a void deed did not deprive her of dower in lands so attempted to be conveyed. In the Johnson Case, supra, it was held that the widow and a daughter of the deceased, being his sole heirs, were tenants in common with an insurable interest in the premises. We find nothing inconsistent in those decisions with the decision of the trial court in this proceeding.

By the Court. — The judgment of the county court is af • firmed.