
    Kneiley v. Kneiley, Admr., et al.
    (Decided March 24, 1931.)
    
      Mr. D. W. Baker and Mr. Chas. M. Kelly, for plaintiff in error.
    
      Mr. 1. 8. Ballard, for defendant in error Olive Harter.
   Pardee, P. J.

The original proceeding was started in the probate court of Summit county, wherein Cuy R. Kneiley, as administrator of the estate of John R. Kneiley, deceased, filed a petition to sell real estate to pay the debts of said decedent. The case was certified, as provided by law, by the probate court to the court of common pleas for hearing and final determination.

In that court issues were made up between Buth Fink Kneiley, the widow of said decedent, and the defendant, Olive Harter, as to whether or not said widow had vested dower in said real estate, and if so, whether it was prior or subsequent to a mortgage upon said property given by said decedent to said Olive Harter; and that court found, upon the issues and evidence, that said widow had dower but that said mortgage was prior thereto. Said widow prosecutes error to this court to said judgment.

The controlling facts are not in dispute. It seems that on January 15, 1923, John B. Kneiley and his wife, the plaintiff in error, purchased a piece of real property on land contract from the Botzum Bros. Co., et ah, and a substantial down payment was made, and substantial monthly payments were subsequently made.

On February 5, 1927, the said John B. Kneiley and the plaintiff in error entered into articles of separation, ceased to live together, made a division of their property, and each agreed to release and assign to the other the property each was to receive by the terms of said agreement, which was accordingly done. The agreement further provided that the plaintiff in error was to release any and all claims by way of dower or otherwise which she might have in said real estate, and she was to be barred from dower therein.

On January 13, 1928, the said John B. Kneiley and his sister, Olive Harter, went together to the Botzum Bros. Co., where said Olive Harter loaned to her said brother the balance due on the purchase price of said property, over and above a first mortgage which had been placed thereon by said vendors, and she personally paid the same to said vendors, who thereupon executed and delivered to said John R. Kneiley a deed for said property, in which he assumed and agreed to pay said first mortgage, and at the same time a second mortgage upon said property was executed and delivered by said John R. Kneiley to his said sister to secure the sum so loaned by her, but the mortgage was not signed by the plaintiff in error.

On April 24, 1929, the said John R. Kneiley died intestate, owning said property with said mortgages thereon and leaving said plaintiff in error his widow.

As hereinbefore stated, upon the issue joined between said plaintiff in error and said Olive Harter, the court found said mortgage to be the second lien upon said property and prior in time to the vested dower of said plaintiff in error, which dower the court found to exist notwithstanding said separation agreement.

The record shows that the agreement of separation was in full force and effect at the time Olive Harter loaned the money to her brother and took the mortgage upon said property to secure the same; that she knew of said agreement and relied thereon; and that the mortgage which was given to her stated that her brother, the mortgagor, was unmarried. The evidence further shows that by the articles of separation, plaintiff in error expressly agreed that her dower in said property should be barred and that she would relinquish the same to the heirs and assigns of her said husband, and she agreed to give proper deeds to accomplish that purpose whenever and to whomsoever her husband might direct. The evidence further shows that this agreement was executed for and upon a valuable consideration passing at the time of its execution and that Olive Harter, relying upon its terms, treated her brother as though he had been divorced.

The trial court found, upon this evidence, that the plaintiff in error could not assert her claim for dower to the prejudice of Olive Harter, the second mortgagee, basing its conclusion upon the theory of subrogation. We find, however, for the reasons hereinafter given, that we do not have to pass upon that question to render a proper judgment in this case.

Olive Harter, by her several pleadings, alleged that the plaintiff in error was estopped from asserting dower against her, by reason of the covenants set forth in plaintiff in error’s separation agreement, and after reading the bill of exceptions, we think the trial court was right in finding, upon the evidence, that it would be inequitable and unjust to allow the plaintiff in error to assert her dower rights against an innocent mortgagee who knew of said contract and relied upon it in loaning the money and taking said mortgage.

The plaintiff in error delivered said agreement to said decedent for.the purposes therein stipulated. She knew or ought to have known that others besides her husband might rely thereon, and from its date until after the decedent’s death she permitted it to remain outstanding as an apparent valid and enforceable contract, without taking any steps to have its purported effect nullified or destroyed. The effect of this outstanding contract was to induce innocent persons to deal with her said husband in regard to said real estate in reliance upon said agreement. By her conduct she said to the world that she had relinquished her dower in said real estate, as much as if she had been present at the time said mortgage was given, and announced that she did not claim dower. To now permit the plaintiff in error to assert that she has a dower interest in said real estate, in direct opposition to that which she had expressly declared she did not have and would not subsequently assert, would permit her to work a fraud upon one who relied upon her former written statement, solemnly proclaimed in the presence of witnesses and duly acknowledged.

“It is a well-established principle in equity, that if a person, having a right to an estate, permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right.” Smiley v. Wright, 2 Ohio, 506, at page 510.

“4. Where land was purchased from a husband on his wife’s assurance that she and her husband had settled their property rights and that she had no further interest in such land, she was estopped from thereafter claiming dower therein.” Morgan v. Sparks, (Ky.), 108 S. W., 233.

For the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.

Washburn and Funk, JJ., concur.  