Mitchell v. Farrish

Miller, J., delivered the opinion of the Court. Thomas A. L. Mitchell and his sister, Mrs. Braunstein, were seised in fee as tenants in common of certain land in .Prince George’s County. Mitchell mar ²³⁷ riecl in November, 3865, and. died in November, 3881, leaving tlie appellant, his widow, surviving him, who has filed the bill in this case for assignment of dower in the real estate of her deceased husband. Marriage, seisin and death of the husband being admitted, the widow's right to dower is established, unless her claim is defeated by some one of the defences set up by the defendants, and these we proceed to consider. 1st.

It is first insisted that her claim is barred by a sale of the lands under the decree passed in the equity proceedings set out in the record, which is claimed to be a sale for the purpose of partition of the property between the two tenants in common. There can be no doubt but that a sale for the purpose of partition under our statute law upon that subject, will bar the inchoate right of dower of the wife of one of the co-tenants in common, and that the purchaser will take a clear title to the land. That question was fully considered and decided in Rowland vs. Prather, 53 Md., 232 . In that case the Court cite and quote with approval the reasoning and language used by the Supreme Court of Ohio in Weaver vs. Gregg, 6 Ohio State Rep., 547, where the question arose under a statute of that State similar to our own. “The right of dower of the wife” (say the Court) “subsists in virtue of the seisin of the husband, and this right is always subject to any infirmity, encumbrance, or incident which the law attaches to that seisin, either at the time of the marriage or at the time the husband became seised.

A liability to be divested by a sale in partition is an incident which the law affixes to the seisin of all joint estates, and the inchoate right of the wife is subject to this incident.” In other words the right which the law gives to every tenant in common to have partition of lands held in common, or a sale and distribution of the proceeds, if it appears they cannot be ²³⁸ divided in kind without loss or injury to £he parties interested, is a right paramount to that of the inchoate dower of the wife of any one of such tenants, and the purchaser acquires a title free from any such claim. Whether in such cases it is necessary to make the wife a party to the proceedings is a question that does not necessarily arise in this case, but we may say that in the Ohio case referred to she was not a party, and upon the reasons given why her right is barred, .we see no necessity for making her a party. This question was alluded to, but not decided in Warren vs. Twilley, 10 Md., 39 , and in Rowland vs. Prather. Besides it is to be noted that the words “She being made a party to the proceedings either complainant or defendant” contained in the Act of 1839, ch. 23, referred to in those cases, have not been retained in the Code.

But we 'think it clear that in order to bar the wife's claim in such cases, the proceedings, when in equity, must be conducted under, and in substantial compliance with, the provisions of sec. 99, Art. 16, of the Code, which gives the Court power to “decree & partition” of lands held in common “on the bill or petition” of any tenant in common, “or if it appears that the said lands cannot.be divided without loss or injury to the parties interested, the Court may decree a sale thereof, and a division of the money arising from such sale among the parties according to their respective rights.” There must be a bill or petition filed by one or more of the tenants in common seeking partition of the lands, and before a decree for a sale can be passed it must be made to appear by proof or other proper proceedings that the lands cannot be divided without loss or injury to the parties interested. These, as it seems to us, are essentiál requirements of the statute. Now what are the proceedings relied on by the defendants ? Without stating them in detail, it appears that ²³⁹ Mrs. Braunstein and her husband had encumbered her undivided interest in this real estate by mortgages, and in 1859 the mortgagees filed a bill for a sale of this undivided interest to pay their mortgage debts.

On this bill a decree for a sale of this interest was passed, but this decree was subsequently annulled by agreement of counsel. Then in February, 1860, these same mortgagees filed an amended bill, in which they charged that Mitchell had an undivided interest in the lands mentioned in their mortgages with Mrs. Braunstein, and that it would be for the advantage of Mitchell and Mrs. Braunstein and her husband, and of the parties interested, that the whole real estate and premises in which they were thus jointly interested, should be sold in order to prevent a sacrifice, and they accordingly pray for a decree for a sale of the whole. Under this amended bill process was issued against Mitchell, but he was never summoned. The case