
    DOWER — JUDGMENTS—JUDICIAL SALES.
    [Wood (6th) Circuit Court,
    March 26, 1902.]
    Haynes, Hull and Parker, JJ.
    Cassa M. Willford v. John B. Heimhoffer et al.
    1. Widow Entitled to Oil Produced From Dower Lands.
    The widow is entitled to the oil produced from land generally assigned and confirmed to her as dower, although the wells are sunk and the oil produced after her husband’s death.
    2, Judgment on Collateral Matters not in Issue Coram Non Judice — Purchaser at Judicial Sale Takes Subject to What Rights.
    The entry of a judgment cutting off the widow’s rights to oil produced from land theretofore regularly assigned and confirmed to her as dower in a partition proceeding is coram non judice and void when the widow, under the terms of an oil lease entered into between the heirs and herself prior to the commencement of the partition proceeding, is entitled to the oil produced therefrom, and her rights under such lease were not involved or made an issue in such proceeding; and a purchaser at the partition sale takes subject to the right of the widow to the oil under such lease.
    AppiSAR-from Wood common pleas.
    James E. Wert and Baldwin & Harrington, for plaintiff:
    James 0. Troup et al., for defendants.
   HAYNES, P. J.

(Orally.)

This ease is in this court on appeal. The pleadings were voluminous-but it is not necessary to state them .at length as the case was heard upon. an agreement as to the facts and some testimony, and it appears: that some years ago one Lewis D. Willford died in this county seized of the real estate described, and that he left a widow,' the plaintiff herein, and certain heirs at law who were of age. The heirs at law and the widow joined in and executed an oil lease on the forty acres to a certain party, and subsequently the land was partitioned The lease was in the ordinary form and provided for the sinking of four wells on the land. These wells were sunk and were productive, and at the time the assignment of dower was made m the partition case, ten acres of this land were assigned to the widow which had upon it two of these four wells. It was a general assignment of dower of that ten •acres and that assignment was confirmed by the court, and after the confirmation, or at the time of the confirmation, there was an order made by the court in a journal entry in regard to the two- wells on this ten acres of ground, practically providing that the widow should not have the two oil wells, but the land alone. Now the widow in her petition in this case claims the oil that has been taken from the land since the time of the assignment of dower. At the time of the execution of the original lease the power was given to one of the sons to draw the proceeds of the oil wells and act as agent of all these parties, including the plaintiff. Subsequently he transferred that power to others, and it passed down through one to another until I think the last party was John B. Heimhoffer.

It is contended that by the assignment of dower, the widow has no right to the oil. In some cases she would have the right to the product of the oil if the wells had been sunk prior to the death of her husband. It is further claimed that this order that was made in this journal entry was conclusive upon her right to the use of these wells and the product thereof, and that she is barred by the judgment that was rendered in that case. Now very briefly on this point: The dower question in this country is like a good many other questions; it is growing and expanding. The time was, when a woman's dower was thought about.as little of as she was (which was little enough). In the case of Crockett v. Crockett, 2 Ohio St. 181, 184, there is some discussion of the question of dower, and Judge Thurman in that case stated, upon the question of the right of the widow to cut timber, how extensively the widow might cut timber. The rule had been very rigid in ancient times. He says:

“That a widow is dowable of wild lands in Ohio has long been settled. * * * That she is bound to pay the taxes upon such lands, when assigned to her for dower, and that her failure to do so may result in a forfeiture of her estate, is expressly provided by statute. * * * It follows, in our judgment, that she may, by a sale of timber, raise money to pay the taxes; otherwise the estate would be a burden instead of a benefit to her. * * * Hence it is well settled, that many things may be done by a tenant for life here, that if done in England would be waste ; as, for example, the conversion of meadow or pasture into plowland, or woodland into a farm, etc. And it is also settled here, that timber cut in improving the land belongs to the tenant for life and not to the rever-sioner. We are also of opinion that where, as in the present case, the ■dower assigned consists of certain wholly unimproved and unproductive town lots and a tract of woodland, the assignment is to be considered so far an entirety as to authorize the sale of timber to pay the taxes on'the lots as well as on the land. But we think the right to sell goes yet further,” etc.

It will be noticed that in this case they recognize the right to change woodland into farmland, and giving to the widow the timber itself, a thing that would startle an old fashioned Englishman out of his grave.

There is a very instructive case in Seager v. McCabe, 52 N. W. Rep. 299 [92 Mich. 186]. In that cáse a man had died leaving a widow, and had died possessed of certain lands in northern Michigan. You know that up there, there is nothing but rock and occasionally a tree that has to fight for its life pretty hard; but it turned out that this land was valuable for its minerals, though it was not worth anything as land to cultivate. The supreme court of Michigan takes up the question of dower, and discusses all these authorities that I have seen and heard cited, and they go through the whole matter very thoroughly. They hold that the widow is entitled to be endowed with the land and the contents of the land — the proceeds of it, and they give her dower in that land and in the minerals in it. The syllabus is:

“Under Howell’s Statutes, Sec. 5733, giving to the widow of every deceased person the use during her natural life of one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, a grant of dower in lands of her deceased husband, valuable solely as mineral lands, includes their use, and entitles her -to her share of the proceeds of mining leases thereof, whether the mines were opened before or after the husband’s death.”

That is a wholesome doctrine and ought to be the doctrine in this country. If a wife helps a husband to accumulate property and get a farm, we see no reason why she ought not to have her share of the products of that land, whether it is from the surface, which may be very light, or from mines or mineral production under it which may be brought to the surface. However, it is unnecessary to go to that length in the decision here. I will state in our judgment, the heirs having united in making this lease and providing for the production of the oil and arranging as they did that it should be drawn as it was, that all this becomes a binding obligation, and whoever undertakes to take the assignment of that lease or of the products of the lease, would be bound by the arrangement that had been made. In other words, we think that it was sufficient to give her a right to the use of the' wells that may be sunk on the land (that were afterwards sunk) to her as dower, and it would be hers as rightfully as it would have been if the wells had been opened prior to the death of the husband. Now the ten acres having been assigned to her, we conclude that she had a right to the proceeds of these wells clearly, unless she has been barred by something that has been done since that time. The paper she signed, turning the property to one son, was simply to make him an agent. He was an agent of these other parties. Nowhere is it shown that she had consented that the money might be turned over to anybody else than herself. It is true that she waited for some time, and the matter had been going on for three .or four years, but she is an old lady, and perhaps was not very well advised as to her rights, and probably of not very strong executive ability, and she probably did not get stirred up sufficiently.

Now as regards, this decree, I will read from the case of Spoors v. Coen, 44 Ohio St. 497, 502 [9 N. E. Rep. 132], In that case a petition was filed in the probate court to sell property to pay debts, and it appeared that Spoors had at some time conveyed the property to another, and. it was claimed that he was old and infirm and was not competent to do that; that Spoors had conveyed to the widow two acres of land. The petition in that case set up that the widow was alive and was entitled to dower, and counsel for plaintiff filed on her behalf a waiver of her dower by metes and boimds, and consented to take it in money. The petition nowhere set up that there was any fraud as to her, nor was any claim made as to her property other than she was entitled to dower interest in the land, and when they took a decree in the case, they decreed that her land should be sold; practically took it out from under her. The court say:

“But, had the probate court the same jurisdiction in such matters as the common pleas, it would avail nothing in this case, for the reason that no such jurisdiction was invoked by the petition of the administrator as against Rhoda SpoOrs. There is no averment in the petition that any land had been'fraudulently conveyed, mediately, or immediately to her. The only averment as to her is, that she is entitled to dower in the lands, for which an order of sale is asked; and the only relief asked as to hei is that her dower may be set off and assigned therein. And, in the answer filed for her by the attorney of the administrator, she simply waives an assignment of dower in the lands and elects to take the same in money.
“It is by no means intended to question or impair the principle that when jurisdiction has been obtained over the subject matter of a cause, by a court competent to exercise' it, its judgment, however erroneous, cannot be questioned in a collateral proceeding. A judgment so rendered can only be set aside or questioned in a direct proceeding instituted for that purpose. This is familiar law. Freeman, Judgments Sec. 135.
“But a judgment rendered by a court of competent jurisdiction in a case brought before it, however erroneously the jurisdiction may have been exercised, is one thing, and a judgment entered by a court of like jurisdiction in a case not before it, is another and a different thing. In the one case its judgment may be erroneous, in the other it is void. To bring a cause before a court, competent to adjudicate it, it is not only necessary that the parties should be in jus vocatio, cited or summoned in the manner required by the law of procedure, but a case must also be made, or stated, affecting the party against whom relief is askedand then after discussing the case, they held this judgment was void.

We think that authority is still in binding force in the state of Ohio, and we think it clearly disposes of this question. It appears that this suit was brought for partition, and there never was a word said in it in regard to the right of this old lady to an interest in this lease, and an order for partition was taken in the ordinary course, and the commissioner’s make the partition, the sheriff returning it, in which they set off in the, usual and ordinary way, ten acres of land, and then afterwards when the matter is confirmed, they undertake to make such disposition of it as will deprive her of her rights in the oil in this ten acres. We hold that this is coram non judie e, and is void, and is not a bar to this woman’s right to recover.

We hold that she is entitled to the product of these wells, and that she is not barred or estopped iby this alleged judgment, and a decree inav be taken in her favor.  