Summary
construing § 10502-1, General Code, predecessor of § 2103.02 Ohio Rev.Code
Summary of this case from In re HillOpinion
No. 27886
Decided June 19, 1940.
Dower — Vested dower abolished and inchoate dower retained — Section 10502-1, General Code — Inchoate dower not reached by creditor's bill.
1. Section 10502-1, General Code (114 Ohio Laws, 337), provides for inchoate but not vested dower, thereby abolishing the latter.
2. A mere inchoate right of dower cannot be reached by a creditor's bill.
CERTIFIED by the Court of Appeals of Hancock county.
In the Court of Common Pleas the plaintiff filed an amended petition October 17, 1938, alleging in substance that on September 1, 1932, S.H. Squire, superintendent of banks of the state of Ohio, in charge of the liquidation of the Citizens Bank of Butler, Ohio, recovered a judgment against the defendant Wise in that court in the sum of $7187.80; that two days later an execution was issued thereon and returned wholly unsatisfied; and that the judgment never has been paid. The plaintiff alleges further that Wise assigned all his property to Charles M. Riegle; that on May 8, 1935, this assignee executed and delivered a deed to Nora Wise, the wife of the defendant Wise, thereby conveying to her "certain properties as and for her rights in and to the property" of the defendant Wise; that also on this same day Nora Wise executed three deeds conveying certain of these properties to her three children (his stepchildren) but reserving to herself the full use thereof during her natural life; that the defendant Wise joined in the execution of the three deeds thereby releasing his dower interest in these properties; that on this day the health of Nora Wise was failing and her death imminent; that the defendant Wise had and has no property other than his dower interest in these properties; that the three deeds were executed with intent on the part of the grantors and grantees to hinder, delay and defraud his creditors; and that nearly six months later on October 29, 1935, Nora Wise died. It is alleged also that subsequently in the year 1936 the plaintiff purchased the unsatisfied judgment from the Superintendent of Banks for a valuable consideration.
In the prayer of his amended petition filed October 17, 1938, the plaintiff asks that the three deeds to the three children of Nora Wise be set aside, that the dower interest of the defendant Wise in these properties be sold and that the proceeds thereof be applied in payment of the plaintiff's judgment.
The defendants filed a demurrer to the amended petition on the grounds that the facts stated therein are insufficient to constitute a cause of action and that there is a misjoinder of causes of action. The Court of Common Pleas sustained the demurrer on both grounds.
Upon appeal on questions of law the Court of Appeals affirmed the judgment and certified the case to this court on the theory that this judgment is in conflict with that of the Court of Appeals of Monroe county in the case of State, ex rel. Fulton, v. Loar.
Mr. Frank S. Culp, Mr. A.S. Beach and Mr. John K. Sawyers, Jr., for appellant.
Mr. C.M. Riegle and Mr. Charles A. Blackford, for appellees.
The single, decisive question requiring the consideration of the court is presented by the first ground of the demurrer challenging the sufficiency of the operative facts alleged. In other words, conceding the truth of the somewhat meager factual allegations in the plaintiff's amended petition, is a cause of action stated?
A study of the plaintiff's briefs discloses that he relies chiefly upon the decision of the Court of Appeals of Monroe county in the case of State, ex rel. Fulton, v. Loar. In so doing he apparently has overlooked the fact that the questioned conveyance in that case was executed in the year 1930 when Section 8606, General Code, providing for vested dower was still in effect. That section was of course repealed and replaced by Section 10502-1, General Code (114 Ohio Laws, 337), which became effective January 1, 1932. The latter section provides for inchoate dower but not for vested dower. An examination of the opinion in the Loar case, supra, clearly shows that the only dower there involved was vested or consummate. On the other hand the only dower involved in the instant case is merely inchoate or contingent, and furthermore the three questioned conveyances were executed May 8, 1935 — more than three years after the effective date of Section 10502-1, General Code, which makes no provision for vested dower. According to the general rule a mere inchoate right of dower cannot be reached by a creditor's bill. 19 Corpus Juris, 494; 17 American Jurisprudence, 702.
The judgments of the lower courts sustaining the demurrer to the amended petition are affirmed.
Judgment affirmed.
DAY, ZIMMERMAN, MATTHIAS and HART, JJ., concur. WILLIAMS, J., dissents.