
    Banta et al. v. Smith.
    [No. 6,127.
    Filed March 10, 1908.]
    1. Appeal. — Briefs.—Alleged errors not discussed are waived, p. 3GG.
    2. Descent and Distribution.' — Widower’s Rights m ■Deceased, Wife’s Real Estate. — Estoppel.—Waiver.—Under §3016 Burns 1908, Acts 1891, p. 71, §1, a widower, unless he is estopped, or has waived his right, is entitled to one-third of his deceased wife’s real estate subject to its proportion of the wife’s antenuptial debts, p. 366.
    3. Estoppel. — Mortgages.—Descent and, Distribution. — A husband who Joins his wife in a mortgage of her lands to pay her debt, the mortgage stipulating that the mortgagors agree to pay the debt secured, is estopped, upon his wife’s death, from asserting his marital rights to such land. p. 366.
    From Noble Circuit Court; J oseph W. Adair, Judge.
    Action by John R. Smith against DeWitt C. Banta and others. From a judgment for plaintiff, defendants appeal.
    
      Affirmed.
    
    
      .II. G. Zimmerman, for appellants.
    
      R. P. Barr and L. W. Welker, for appellee.
   Watson, J.

This was an action in ejectment by appellee against appellants. The cause was tried by the court without a jury. Special findings with conclusions of law thereon were made.

The court found that appellee was the owner of the land in question and entitled to possession, and a judgment was rendered accordingly.

The special findings were, in substance, that Mary C. Ban-ta was the owner in fee simple of certain described real estate. She died intestate, leaving surviving her DeWitt C. Banta, her husband; Earl Z. and Bessie Banta, and Leila Grubb, her children, who were the sole heirs. An adminis: trator was appointed. There being no personal property out of which the debts of the estate could be paid, the administrator petitioned the Noble Circuit Court to authorize him to sell said real estate, the petition alleging that the personal property was insufficient to pay the debts; that claims filed and allowed aggregated $260, and that those filed and pending were in the sum of $2,421.51; that decedent owned said real estate in fee simple; that appellee held seven promissory notes, in the sum of $2,200, executed by decedent and her husband, DeWitt C. Banta, secured by a mortgage on said real estate, and he. claims a lien on said realty; that said notes and mortgage were given for the purchase money of said real estate. The petition also avers the death of the intestate, enumerates the surviving heirs, and alleges that the widower’s share in the estate is subject to sale to satisfy said mortgage lien. The administrator .prayed for an order of the court to sell said real estate, including the husband’s share, and made DeWitt C. Banta, Winifred, Earl Z., and Bessie Banta, Lewis and Leila Grubb, John R. Smith, Christian Butz, and Daniel Zimmerman defendants thereto. Each of said defendants was duly served with process, and appeared and filed answers and cross-complaints. Upon the hearing the court ordered all the real estate to be sold to satisfy said mortgage and notes. By the terms of the mortgage the mortgagors agreed to pay the mortgage debt without relief from valuation laws. Notice of the sale was given, and the land was sold for $3,010. The sale was approved by the court,- and the administrator was ordered to execute a deed to the purchaser, appellee herein, which deed was duly recorded. DeWitt C., Winifred, Earl Z., and Bessie Banta were unlawfully in possession of said land at the commencement of this action, and refused to deliver possession of the same. The conclusions of law were that John R. Smith was the owner in fee simple of the real estate in question, and that appellants were unlawfully in possession of the same.

DeWitt C. Banta appealed, assigning as errors (1) the conclusions of law on the special findings; .(2) the overruling of his motion for a new trial; (3) the judgment is not fairly supported by the evidence; (4) the judgment is against the weight of evidence.

The only question discussed in the briefs is whether the court making the order of sale had jurisdiction so .to do. The other assignments of error, not being discussed, need not be considered.

A widower takes one-third of his deceased wife’s real estate subject to its proportion of the wife’s antenuptial debts. §3016 Burns 1908, Acts 1891, p. 71, §1. This right is absolute except in cases in which the right has been waived by some agreement, either antenuptial or post-nuptial, or where the surviving husband is estopped to deny the power of the court to order the sale of his share of such estate. Leach v. Rains (1897), 149 Ind. 152; Huffman v. Copeland (1894), 139 Ind. 221; Roach v. White (1884), 94 Ind. 510.

‘ ‘ The husband who by joining with the wife enables her to mortgage her estate, as she could not otherwise do, said mortgage containing an agreement to pay the debt secured, is estopped from denying the jurisdiction of the court to sell all the land thus mortgaged. ’ ’ Herbert v. Rupertus (1903), 31 Ind. App. 553. See, also, Pearson v. Kepner (1902), 29 Ind. App. 92.

The special findings show that DeWitt C. Banta joined with his wife, Mary C. Banta, in the execution of the mortgage on the described real estate; that said mortgage contained a promise to pay the debt which the mortgage secured; and, further, that said DeWitt C. Banta was surety on the notes given for the money loaned to the wife for the purchase of the land. For the reasons given, DeWitt C. Banta is estopped to question the jurisdiction of the court which ordered the sale of all the mortgaged real estate.

Judgment affirmed.  