
    Rebecca Ann Walker v. Luther A. Hall, Cynthia Ann Hall, et al.
    1. "Where-, at the time of the partition of an estate between 'co-devisees, one Of them had an inchoate right of dower in premises set off by the partition to another $ and, subsequently to the partition, the inchoate right of dower became perfect by the death of her husband, she will not, in equity, be held' estopped to claim her dower against her co-partitioners.
    
      2. In such a case equity will, while sustaining the claim to dower, decree and' enforce a contribution by all the parties to the partition, to make good to the co-devisees, in whose share the dower is assigned, their equal share in the common estate remaining after the assignment of dower.
    
      Civil action. Reserved in Seneca county.
    The case is stated in the opinion of the.court.
    
      James Pillars, for plaintiff:
    The plaintiff's expectancy of dower could not have been, in any way, adjudicated upon in the partition proceedings. The plaintiff’s husband was then alive. Her dower interest then was a contingency, not the subject of adjudication. She is not estopped by that proceeding from now claiming dower. Lewis v. Smith, 11 Barb. 152; Slip v. Lawback, 2 Harris, 442; Shurtz v. Thomas, 8 Penn. St. 359; Owen v. Slater, 26 Ala. 547; Tennant v. Stoney, 1 Rich. Eq. 222.
    The plaintiff’s expectancy of dower did not become merged by reason of the premises in- which it is claimed being a part of the lands devised to her and others by her father. A mere inchoate right could not thus merge. The doctrines of merger have no application to such a case. 3 Greenleaffs Cruise, 554, et seq., title “Merger;” Preston on Merger, 55, 107, 166; Roberts v. Jackson, 1 Wend. 478; James v. Morey, 2 Cowen, 246; 4 Kent, 102; Myers et al. v. Hewitt et al., 16 Ohio Rep. 453
    Neither are the doctrines of extinguishment applicable to such a case. 3 Greenleaf's Cruise, 556; Preston on Merger, 548; Fox v. Hart, 11 Ohio Rep. 414, 416; Lessee of Fosdick v. Risk, 15 Ohio Rep. 84; Lessee of Jennings v. Wood, 20 Ohio Rep. 261, 267.
    As to the nature of the estate in dower, see Learned v. Cutter, 18 Pick. 9; Moore v. New York, 4 Seld. 110; 1 Washburn on Real Prop. 250, 251, 254, 255; 4 Kent. 61; Green v. Putnam, 1 Barb. 500; Stewart v. McMartin, 5 Barb. 438, Johnson v. Shields, 32 Maine, 424; Cox v. Jagger, 2 Cow. 651; Sheaf v. O’Neil, 9 Mass. 9; Gooch v. Atkins, 14 Mass. 378; Miller’s Adm’r v. Woodman, 14 Ohio Rep. 518, 520; Brown v. Meredith, 2 Keen, 527; Conant v. Little, 1 Pick. 189; Baker v. Baker, 4 Greenleaf, 67, Lawrence v. Brown, 1 Seld. 394; Park on Dower, 340, 341.
    
      
      W. F. Stone, for defendants:
    The plaintiff is not entitled to dower in the lands in which it is claimed, nor in any of the lands devised and partitioned.
    
    1. Because, having taken under the will of her father, she .s estopped from claiming any adverse title to or interest in any of the property disposed of by the will. Hyde v. Baldwin, 17 Pick. 308; Smith v. Smith, 14 Grey, 532; Thelluson v. Woodford, 13 Ves. 209; Churchman v. Ireland, 1 Russ. & Milne, 250; Tibbetts v. Tibbetts, 19 Ves. 655; Brown v. Ricketts, 3 Johns. Ch. 553.
    2. The plaintiff is estopped by the partition from claiming any interest in any of the lands aparted to her co-tenants. Young v. Cooper, 3 Johns. Ch. 296; Jackson v. Edwards, 7 Paige, 404; Willard’s Eq. 702; Witham v. Cutis, 4 Greenl. 31; 1 Washburn on Real Prop. 429, sec. 11, 431, sec. 16; Jackson v. Harbauck, 3 Johns. 331; 2 Coke’s Littleton, sec. 262, 174 a; 2 Washburn on Real Prop. sec. 262; Seaton v. Barney, 4 W. & S. 184; 5 Comyn’s Dig. 170; Coleman v. Coleman, 9 Harris, 100, 108; Frather v. Shohoecker, 2 Penn. 115; Sawyers v. Cators, 8 Humph. 256.
    As between the parties to a partition, there is an implied warranty annexed thereto, which estops each party from asserting any adverse claim to any parcel of the land allotted to another. 4 Kent’s Com. (8th ed.) 391, note b, and cases there cited; Coleman v. Coleman, 3 Dana (Ky.), 403.
    3. The proceedings and judgment in the partition are also a bar to the claim now set up by the plaintiff, upon the familiar principle, that judgment, the result of a suit in chancery instituted by her, is, until reversed, conclusive. All the parties were, in that case, before the court. That court was a court of equity, and had jurisdiction and power to adjust and settle all the rights and equities of all the parties, whatever they were, and that is precisely what the judgment in that case purports to do. An inchoate right of dower, if any such existed, formed no exception to this rule. See Jackson v. Richards, 7 Paige, 406; 9 Cowen, 530-569; Foster v. Abbott et al., 8 Met. 598; Edward’s Eq. 699 et seq.
    
    
      4. It is settled in this state, that the wife is not entitled to dower in lands sold as the result of proceedings in partition, and this, although she was not a party to the suit. Weaver v. Gregg, 6 Ohio St. Rep. 547. The land goes to the purchaser free of any claim of dower. The money is divided among the tenants in common — the share set off to the husband included, as it Was held in that case, all the interest of the wife. So would it have been if the land, instead of being sold, had been aparted. The share of the land set off to the husband would have included all the interest of the wife in all the lands partitioned.
    
      A fortiori, should that be the rule in this case where the wife’s land and not the husband’s was partitioned — the fee which formerly belonged to the husband, out of which the inchoate right of dower arose, having, before the partition, become the property of the wife.
    5. The proceedings in partition none the less estop or bar the plaintiff from maintaining this action because her right of dower was then inchoate. It is inchoate as well after as before the husband’s death, until dower is actually assigned. Until assigned, she has no interest or estate in the land which she can alienate. She can release it to the owner of the fee; and this, by a proper deed or release, she could have done while her husband was living. This fact is a conclusive answer to the position that the partition proceedings do not bar or estop the plaintiff from maintaining this action because her right to the land in controversy accrued after the partition. The plaintiff, then, had no interest in this land, at the time the partition was made, which the court in that case was not fully competent to deal with. She had no interest therein which it was not competent for her, in that suit, to assert or to waive, and none which, on the consummation of that partition, a deed of release properly executed, in accordance with the theory of the law upon that subject, -would not have forever barred her from asserting; and she claims no interest now, which she does not claim was begun long anterior to the partition, and none, which it is fretended she can now assert, if all her rights then 
      existing are bound by tbe proceedings and'judgment in that case.
    6. If the plaintiff should prevail, Mrs. Hall has a right to require her former co-tenants to make good to her, in this action, the loss she will thereby sustain.
    
      A. G. Thurman, also for defendants,
    concurring with Mr. Stone in his points, called the attention of the court to White v. Brocaw, 14 Ohio St. Rep. 339; Smiley and wife v. Wright, 2 Ohio Rep. 506, 510; Shotwell and wife v. Sedam, 3 Ohio Rep. 5.
   Brinkeriioee, O.J.

The plaintiff filed her petition in the common pleas of Seneca county, against Luther A. Hall and Cynthia Ann, his wife, for the assignment of dower in certain real estate situate in said county, and in the petition described, and for general relief. After judgment in the common pleas, the case was appealed to the district court, where it was reserved for decision in this court on the petition, answers, reply, and an agreed statement of facts.

Omitting matters of detail not material to the determination of the case, the facts as they appear from the pleadings and the agreed statement, are substantially these:

The plaintiff is the widow of Joseph Walker, the daughter of Josiah Hedges, deceased, and the sister of the defendant, Mrs. Hall. During her coverture with Joseph Walker, he at one time was seized in fee of the real estate in which she now claims dower. Under a judgment and execution against him this real estate was sold and conveyed by the sheriff; and the title acquired by the purchaser at sheriff’s sale, was, by subsequent sales and conveyances, finally vested in the plaintiff’s father, Josiah Hedges; the plaintiff having never released her inchoate right of dower. And thus the title remained until the death of Josiah Hedges, who died testate, and whose will was admitted to probate in July, 1858. By this will, among many other things not material to the question before us, he devised a considerable real estate, including that in which dower is here claimed, equally (subject to deduction for advancements), among such of his children as were living, and the heirs of such as were dead.

In April, 1859, Joseph Hall and his wife, the plaintiff here, joined with other devisees of Josiah Hedges in an action against Hall and wife and still other of the heirs and devisees of Josiah Fledges, for an.account of advancements and the partition of the real estate devised to the parties in common.

Partition was had accordingly; the premises in which dower is here claimed being assigned to Mrs. Hall as her share. The partition as made by the commissioners and confirmed by the court, was in accordance with an agreement amicably made among the parties to the partition; and neither in the will of Josiah Hedges nor in the proceedings for partition, is there any mention or reference to, the plaintiff’s inchoate right of dower.

Afterward, in January 1861, Joseph Walker died; and in March following, this petition was filed.

On this state of fact, is the plaintiff entitled to dower? We think she is; subject, however, to the right of her sister, Mrs. Hall, to such a contribution by all parties, to make good the loss she sustains by reason of the plaintiff’s assertion of her title to dower, as will be equivalent to a new partition. And we will briefly notice the considerations which have been urged against this conclusion.

1. True, it is a well-settled doctrine of the law, that “no one is permitted to claim under, and, at the same time, adverse to a will. If the testator assumes to dispose of property belonging to the devisee or legatee, the latter, accepting the benefit, must also make good the testator’s attempted disposition.” White v Brocaw, 14 Ohio St. Rep. 339. And if it were apparent upon the face of the will of Josiah Hedges, or from the terms of the will taken in connection with surrounding circumstances, that he intended by his will to dispose of the premises in controversy here as if freed from the plaintiff’s possibility of dower therein, she, claiming the benefits of the will, would, I suppose, be precluded from asserting her claim. But the devise under which all these parties claim is a general one ; and there is nothing in the terms of the will to indicate that the testator intended to devise, in respect to these premises, any other title than that which he held, to-wit, the fee simple, subject to his daughter’s possibility of dower therein.

2. The plaintiff’s claim is not barred by the proceeding in partition regarded as an adjudication. It is not res adjudieata. That proceeding was, throughout, silent in respect to the plaintiff’s inchoate right of dower, and very properly so; for she then had not only no estate, but no right capable of being asserted in action. What she had was a mere possibility, which might, or might not, subsequently ripen into something of value.

3. Is the plaintiff precluded from asserting her claim to dower in a portion of the lands partitioned among her and her co-devisees, by the mutual warranty which the law implies as arising and subsisting inter se, between parties to a partition so long as the privity of estate continues between them ? This is a serious question, and one not free from difficulty. That such warranty, as a general rule, exists at common law, is clear from the old books. “ If the purparty of one parcener be evicted by a title paramount, the partition shall be defeated ; for the partition imports a warranty and condition, in law, that the one shall enter upon the other and enjoy her part in parceny, if she be evicted, as long as the privity between them continues.” Comyn’s Dig. title “ Parcener,” (C. 13); Co. L. 173 b, and 174 a. “ Applying this common law duty of co-tenants to aid each other in protecting what had been a common estate, even after partition made, the law holds it incompatible with their duty toward each other for either to become the demandant in a suit to recover any portion of the land by a paramount title, and thus to place himself in antagonism to his co-tenants and their common warrantor.” “ And where partition has been made by law, each partitioner becomes a warrantor to all the others, to the extent of his share, so long as the privity of estate continues between them. And inasmuch as a warrantor can not claim against his own warranty, no tenant after partition made can set up an adverse title to the portion of another for the purpose of ousting him from the part which has been parted off to him.” 1 Washburn on Real Property, 431-2; Venable v. Beauchamp, 3 Dana, 321; Feather v. Strohoecher, 3 Penn. R. 505 ; Jones v. Stanton, 11 Misso. R. 433.

That these are the established general rules bearing upon the question under consideration must be admitted; and it is equally clear that when they are applied to the ordinary case of the acquisition by purchase of an independent, adverse, and paramount title by one co-tenant, and its assertion by him against another after partition, the operation of these rules is equitable and just. In such case, it is but just that the purchaser of the adverse title should be held to have purchased for the common benefit of all parties to the prior partition, and that his rights under such purchase should be limited to a claim for contribution against his late co-tenants, to reimburse him for his expenditure for the common benefit. 4 Kent, 371, notes. And except the case of Woodbridge v. Banning, 14 Ohio St. Rep. 328. I have not been able to find a case in which any exception to the application of these general rules has been recognized. But the cases in which the doctrine of implied warranty between partitioners has been invoked and applied are few; and all of them present the simple case of a voluntary purchase (after partition made, and before eviction by adverse paramount title) of an adverse and paramount title, and the attempt to assert such title against co-partitioners. But this is not such a case. As in Woodbridge v. Banning, supra, this is a case in which, by the operation of law and the act of Grod, there has, subsequent to the partition, ripened, in favor of the demand-ant, a title which potentially existed in her at the time of the partition, but which was then inchoate and incapable of being asserted. In none of the other cases were the facts analogous to the facts in this ; and the question as to whether the common law doctrines of implied warranty between co-partitioners apply to a case of this kind, did not in them arise Moreover, it seems to me to be not unworthy of notice, that the doctrines of implied warranty and consequent estoppel between co-partitioners, originated at common law; and, though based on considerations of natural equity, they were long applied only in proceedings at common law by writ of partition. That form of proceeding is now obsolete, and ha.s never had a place in the practice of our courts; it being superseded by proceedings in equity, and under special statutes. And it seems to us, that when the principles of the common law are, as here, invoked as guides to proceedings in equity, they ought to be applied only so far as the ends of justice will allow. The warranty under consideration is not a warranty in fact, but a warranty by implication of law only. The law raises the implication for the attainment of justice; and the implication should cease wherever its application will work injustice. To hold Mrs. Walker estopped to claim dower in this case by reason of an implied warranty, would be unjust to her; hut to award it to her in accordance with the provisions of our statute in respect to improvements made subsequent to alienation by the husband, and decreeing contribution by all the co-partitioners to recompense Mrs. Hall for the loss of her equal proportion of the estate, exclusive of the dower estate of Mrs. Walker, will do justice to all. And, all the parties to the partition having been brought into this case, there will be a decree accordingly.

The case of Woodbridge v. Banning, before referred to, was closely analogous to this. There a partition was had between parties as heirs of Anthony Banning, deceased. Subsequently a spoliated will of the common ancestor was established and admitted to probate. And in an action by a devisee' under the will, who had been a party to the proceeding in partition, to recover lands which the partition had assigned to other parties, he was held not to be estopped by the proceedings in partition. I think I am not mistaken in saying, however, that in that case the' common law doctrine of implied warranty between co-partitioners escaped the attention of the court. Had it been otherwise, the reasons given for the decision would probably have been modified; but the decision would have been the same.

Decree for plaintiff.

Scott, Day, White, and Welch, JJ., concurred.  