
    Case 89 — Agreed Case to Determine Whether Plaintiffs are Entitled to Specific Performance of a Contract for the Sale of Land
    Oct. 22.
    Woman’s Club Corp. v. Reed, &c.
    'APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.
    Judgment for Plaintiff and Defendant Appeals.
    Reversed.
    Dower — Judicial Sale of Husband’s Land — Failure of Wife to' Consent.
    Held: Under Civ. Code Pr-ac., sec. 490, providing for the sale of “a vested estate in real property, jointly owned by two or more persons, in an action brought by either of them, though the plaintiff or defendant he of unsound mind or an infant,” a sale of the husband’s land does not pass the wife’s contingent right of dower unless she has been divested of her right as required by Id., section 495, applying alike to all married! women, whether infants or adults, which provides that, “if a woman have a vested or contingent right to dower in land ordered to be sold pursuant to the provisions of this chapter, the court, with her consent, to be taken upon privy examination if she be married and of sound mind, or without her consent if she be of unsound mind, may order a sale of the land free from her right.”
    HUMPHREY, BURNETT & HUMPHREY, por appellant.
    We submit:
    1. The sale and conveyance made in the suit filed by W. O., J. D. and S. S. Reed against P. B. Reed, did not pass a title to the purchasers at that sale for the reason that Ida C.. Reed, wife of P. B. Reed was not a party defendant to that action, and her dower interest is still outstanding.
    2. The filing of the supplemental petition in that action against Ida C. Reed after judgment had been entered and the sale made, was an entirely unauthorized mode of procedure and did not cure the omission to make her a party to the suit in the first instance. Ida C. Reed therefore can not - be required to ■take her dower out- of the purchase bond not yet due.
    3. The question raised by the supplemental petition as to whether Ida C. Reed should have been made a party in the first instance to that suit, is still in litigation in the chancery division of the Jefferson circuit court, and the judge of the common pleas division had no power to make any order in the case at bar in reference to the question of Ida C. Reed’s dower which would be binding upon the judge of the chancery division in the action -pending in the latter court.
    4. The pendency of the appeal of Celina R. Hobson at the time the contract of sale was made between appellant and appellees, is a Us pendens.
    
    5. The appelles, by buying .in their own title in .the suit instituted by them, above mentioned, could not put themselves in a better attitude, so far as the Us pendens created by Celina R. Hobson’s appeal was concerned, than they were before.
    For these reasons we think the title to this property is defective and that appellants ought not be required to take it or pay the purchase -price.
    W. W. THUM, EOB APPELLEES.
    POINTS AND AUTHORITIES.
    1. Section 490 of the Civil Code controls, and tenants in common can not resist a -sale at the suit of another tenant in common who shows that the common land can not be divided without materially impairing its value. This section controls section 495.
    2. (Section 495 of the Civil Code, in order to be reconciled, must apply to infant married women. Kendall v. Briggs, 81 Ky., 119.
    3. “While the wife of one of several tenants in common has an inchoate right of dower in her husband's portion of the real estate held in common, yet such right is subordinate to the paramount right of the .other tenants in common to have partition of the common property in any of the modes by which such partition may be lawfully made. Hence, if a sale for partition becomes necessary, the wife’s inchoate right of dower in the land is barred, though she is not a party to the proceedings for partition, and the purchaser at such sals takes his title disincumbered of such subordinate right, of dower.”
    Holly v. Glover, 36 ,S. C., 404; Hines v. Stevens, 45 Mo., 209; Lee v. Lindell, 22 Mo., 202; Sire v. St. Louis, 22 Mo., 206; Williams v. Wescott, 77 Iowa, 303; Davis' v. Long, 153 111., 181; Rowland v. Prather, 53 Md., 202; Mitchell v. Parrish, 69 Md., 238.
    “A liability to be divested by a sale in partition is an incident which the law affixes to the seizin of all joint estates; and the inchoate right of the wife is subject to this .incident, and when the law steps in and divests the husband of his seizin and turns the realty into personalty, she is by the act and policy of the law remitted, in view of her inchoate right of dower in the realty, to an inchoate right to a distributable share of the personalty into which it has been transmuted.” Weaver v. Greegg, 6 Ohio St., 552. See also the full and well reasoned case of Haggerty v.. Waggener, 148 Ind., 625. There are many other Indiana cases sustaining this view. See .also Burn’s Revised Statutes of Indiana, section 2652. 1 Wash-burn, Real Property, sec. 208, page 158.
    “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 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 .partition, she loses by .such sale all claim to the land, although no party to such proceedings.” Am. .fc Eng. Ency., title “Partition,” vol. 17, page 721; 15 Ency. PI. & Pr., title “Partition,” page 795, and cites Davis v. Long, 153 111., 181; Weaver v. Gregg, 6 Ohio St., 552; Hinds v. Stevens, 45 Mo., 209; Lee v. Lindell, 22 Mo., 202; Haggerty v. Wagner, 148 Ind., 625; Matthews v. Matthews, 1 Edwards’ Chy., (N. Y.) 564; Moore v. Mayor, &c., 59 Am. Dec., 473, &c.; Lloyd v. Conover, 25 N. J. L., 48; Fletcher v. Holmes, 32 Ind., 536; Hitchcock v. Harrington, 5 Ind., 222; McCabe v. Bellows, 66 Id., 467.
    4. The will of Mrs. Jane M. Reed not having been superseded, reversed or annulled, a sale had either by the executor or by judicial decree under the will conveys a good title to the purchaser. ' Reed v. Reed, 91 Ky., 267.
   Opinion op the court by

JUDGE DuRELLE

Reversing.

This is an agreed case in equity, by the statement of facts in which it appears that by a written contract W. D. Reed, J. D. Reed and Solomon S. Reed agreed to sell, and the Woman’s Club Corporation agreed to buy, a lot of land in L'ouisville for the price of $5,200; the vendors binding themselves to convey a good and marketable title. The vendors tendered a deed for the land, and demanded payment of the agreed price, but the vendee refused to accept. The question submitted was whether the vendee should accept the deed tendered and pay the purchase money. The circuit court decreed specific performance of the contract to purchase. The objections to the title are as follows: First. The lot of land in controversy is part of a lot fronting 120 feet on Fourth street, which with other property was devised by Mrs. Jane M. Reed to the vendors and to P. B. Reed, to be equally divided between them. The vendors brought suit against P. B. Reed, praying a sale of the 120-foot lot on the ground that it could not be divided among the owners without materially impairing its value, and obtained a judgment for its sale upon that ground, for the purpose of dividing the proceeds among the owners. At the sale the lot was purchased by the vendors, the report of sale confirmed, and a deed executed "to them, retaining a lien for the share of P. B. Reed, the greater part of which has been paid off, and arrangements satisfactory to the vendee made for the payment of the remainder. Ida C. Reed, who at the time of the devise was and still is the wife of P. B. Reed, was not madte a party to the ,suit referred to, and has done nothing to release her contingent right of dower in the land, or to estop herself from claiming it. If the decretal sale did not extinguish her right of dower, or transfer it as a’claim upon the proceeds of sale, the title is defective. After the deed to the vendors, they filed a supplemental petition in the suit to sell the property, to which P. B. Reed and his wife were made defendants, reciting the proceedings which had been, had in the action, and alleging that the wife was not a necessary party to the suit, and that the sale passed title to the lot free from her dower, but praying that, if this was not the effect of the sale, the wife should be compelled to accept the present value of her contingent right of dower, to be paid out of the balance due to her husband when same should be paid into court. No steps were taken upon the supplemental petition, except to have process served on P. B. Reed and wife. .Second. The will of Mrs. Jane M. Reed was duly probated by the county court of Jefferson county before the bringing of the suit for a sale and division of the proceeds. After a deed was made to the vendors, a grandaughter of Mrs. Jane M. Reed filed an appeal in the Jefferson circuit ‘court from the order probating the will, making proper parties, which appeal is still pending, but the order of probate has not been superseded, reversed, or annulled. The pendency of this appeal is claimed by the Woman’s Club Corporation to constitute a Us pendens against the property, and to render the title unmarketable.

The suit for a sale and division of the proceeds of the lot was brought under section 490, subsec. 2, of the Civil ■Code of Practice, being the second section in chapter 14 of the Code, which provides for “sales of real property of persons under disability,” etc. That section provides: “A vested estate in real property, jointly owned by two or more persons, may be sold by order of a court of equity, in an action brought by either of them, though the plaintiff or defendant be of unsound mind or an infant: (1) If the share of each owner be worth less than one hundred dollars. (2) If the estate be in possession and the property can not be divided without materially impairing its value, or the value of plaintiff’s interest therein.” It may be admitted that, but for section 495 of the Civil Code of Practice, we might find little difficulty, under the decisions of the courts of last resort of a number of other 'States, in reaching the conclusion that the wife’s contingent right of dower, being derived through and dependent upon the seisin of her husband, is subject to all the burdens with which the husband’s estate is chargeable, and, if he takes his estate as a joint tenant or a tenant in common, he takes it subject to the right of his cotenants to have partition if the land be divisible, and to have a sale and division ■of proceeds if the land be indivisible without material -impairment of its value. Claiming through and under him, she takes her contingent and inchoate right subject to all' the incidents which attend his vested right, and, if his estate can be sold, hers goes with it. iSo in some of the States it is held that in proceedings similar to that authorized by section 490 the title is passed free of -the wife’s inchoate right of dower, though she be not a party to the proceedings, and without any right attaching in her favor to the proceeds: Holley v. Glover, 36 S. C., 404 (15 S. E., 605, 16 L. R. A., 776, 31 Am. St. Rep., 883); Hinds v. Stevens, 45 Mo., 209; Lee v. Lindell, 22 Mo., 202 (64 Am. Dec., 262); Sire v. City of St. Louis, 22 Mo., 206; Williams v. Westcott, 77 Iowa, 332 (42 N. W., 314, 14 Am. St. Rep., 287); Davis v. Lang, 153 Ill., 181 (38 N. E., 635); Rowland v. Prather, 53 Md., 232; Mitchell v. Farrish, 69 Md., 238 (14 Atl., 712); Weaver v. Gregg, 6 Ohio St., 552 (67 Am. Dec., 355); Haggerty v. Wagner, 148 Ind., 625 (48 N. E. 366) 39 L. R. A., 384). And see 1 Washb. Real Prop. sec. 208, where it is said: “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 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 partition she loses by such sale all claim to the land, although no party to such proceeding.” But the Kentucky Civil Code of Practice contains a provision, the like of which is not shown to exist, in any of the States whose decisions are relied on as authority. Section 495 provides: “If a woman have a vested or contingent right to dower in land ordered to be sold pursuant to the provisions of this chapter, the court, with her consent, to be taken upon privy examination if she be married and of sound mind, or without her consent if she be of unsound mind, may order a sale of the land free from her right, and shall provide for reasonable compensation to her out of the proceeds of sale, or that she shall have the same right in property purchased with the proceeds as she had in the property sold.” Now it is contended that in proceedings under section 490 for sale and division of proceeds, where the wife is made a party defendant, no objections raised by her would be heard by the court to prevent a sale of the property. The case, of Kean v. Tilford 81 Ky., 600 (5 R. 6551 is relied on in support of this proposition. It is argued that the wife would therefore be a nominal party to the proceedings, and that it is therefore immaterial whether she be made a party or not. But a careful examination of the case of Kean v. Tilford, supra, shows that it does not decide any such question as claimed.

It is further contended that section 495 does not apply to proceedings under section 490, and the opinion of Judge Pryor in Kendall v. Briggs, 81 Ky., 119 (4 R. 854) is relied on to establish this proposition. It is admitted that sectioni495 was not under consideration in Kendall v. Briggs. The sections there construed were sections 493 and 497. Those sections, so far as they were claimed to affect that case, made provision for the case of infant married women. They were held not applicable in that case, because there were no infant married women interested in it. Nor was there in that case any question of the extinguishment of any vested or contingent right of dower in any married woman. The married women in that case were joint tenants of a vested estate in possession. Section 495, which applies solely to the case of “a woman” having “a vested or contingent right to dower in land ordered to be sold pursuant to the provisions of this chapter,” was not involved, and could not have been involved, in that case. Nor can we find in the opinion in Kendall v. Briggs any reasoning or analogy to support the contention of counsel that section 495 must be construed to apply, to infant married women. Neither do we feel authorized to write into this statute, apparently designed for the protection of all women having vested or contingent rights to dower, words which shall limit its protection to infant married women. Sections 493 and 497 apply specifically to infant married women who are the owners of vested estates in real property jointly with others, and subsection 4 of section 493 seems to provide that such interest of an infant married woman should not 'be sold until she file the necessary consent to the sale and acknowledge it on privy examination. Section 495 applies to women having a vested or contingent right to dower in land ordered to be sold pursuant to the provisions of this chapter. It is permissive in form. It provides a mode in which their rights may be divested in such proceedings. If the woman be a widow, it may be done with her consent. If she be married and of sound mind, with her consent, taken upon privy examination. If she be of unsound mind, the 'chancellor may consent for her. This permissive statute, with provision for compensation for her dower right either out of the proceeds of sale or by substitution of her right upon the property purchased therewith, is a clear implication that her right must be divested in the mode defined or not divested at all. We reach this conclusion with some regret, but are unable to reach any other from the language used. The other question need not be decided.

The judgment must therefore be reversed, and the cause remanded, with directions to enter a judgment in accordance with this opinion.

Judge Hobson,

dissents.

Petition for rehearing by appellee overruled, response filed (not to be reported) 23 R. 1346, 65 S. W., 862, also Judge Hobson’s dissenting opinion.  