Reiff v. Horst

Irving, J.,

delivered the opinion of the Court.

The motion to dismiss this appeal cannot prevail. By section 22 of Article 5 of the Code of Public General Laws, it is provided, that “ on an appeal from a final order all previous orders which may have passed in the cause shall he open for revision in the Court of Appeals, unless an *46 appeal under the next preceding section may have been previously taken to such order.” In the 21st section, which is “ the next preceding section ” referred to, one of the things from which an appeal may be taken and for which that section provides, is “ an order determining a question of right between the parties, and directing an account to be stated on the principle of such determination.” The prayer for appeal in this case is not only from the order of ratification of the auditor’s account stated July 10th, 1880, under the order of the Court, passed June Yth, 1880, but also “from all action had herein respecting the said account and the distributions therein made, and all proceedings subsequent to the remanding of the cause by the Court of Appeals of Maryland.” This prayer of appeal therefore by its express terms is sufficient to embrace an appeal from the order of the Court, whereby the exceptions to the former audit were passed upon, and the audit stated in accordance with the instructions of the appellant’s counsel was set aside, and the opinion of the Court establishing the principles by which the audit was to be controlled and the question of right between the parties was settled. All these were proceedings had in the cause after the same was remanded from this Court on the former appeal. In disposing of the questions raised on the other audits, the Court determined the question adverse to the view of the appellant, and by its order directed an account to be stated, in accordance with the principle so fixed by the Court. Under such circumstances therefore it was not indispensable to the consideration of the objection now made to this audit, which has been finally ratified, that a formal exception should have been made thereto. The audit appears to have been made in pursuance of an order' directing its mode of statement, which order was the determination of a question already before the Court, and was the subject of appeal, and is, by the prayer of appeal, appealed from. In our opinion *47 therefore there is no ground for dismissing the appeal. The only question made and relied on by the appellant is, that in the order directing the account to he stated, and in the account accordingly stated, Mrs. Horst has been allowed a sum in lieu of her inchoate right of dower in the property sold and being distributed, which was not warranted by the principles established hv this Court on the former appeal, and which was directed by the opinion remanding the cause to he observed in the statement of the account. The interest of the wife in her husband’s real estate is inchoate only during his life, it requires the husband’s death to occur before it becomes a vested right. As this Court defines it in Buchanan vs. Deshon, 1 H. & Gill, 280, “ she has no vested right, it is altogether contingent, depending upon her surviving her husband.” In Hawley vs. Bradford, 9 Paige, 201 , the Chancellor says: “ Strictly speaking, the wife has no interest or estate in the lands of her husband during his life, which is capable of being mortgaged or pledged for the payment of his debt. Her joining in a mortgage therefore merely operates by way of release or extinguishment of her future dower as against the mortgagor, if she survives her husband, hut without impairing her contingent right of dower in the equity of redemption. If the mortgage he foreclosed in the life-time of the husband, she has no claim on the surplus proceeds of sale; hut if her husband he dead when foreclosure takes place her dower right in the equity of redemption having then become consummate, she would he endowed of the surplus proceeds.” 1 Scribner on Dower, 478; 5 Johnson’s Ch. Rep., 452. In the last cited case, Chancellor Kent says, it is very clear this is the law. It results from these authorities that the wife’s inchoate right is not such a right as may he bargained and sold. Her deed does not pass any title. It operates only by way of estoppel or release. And any words of release would he as effectual as words of grant. *48 She cannot convey it to a stranger. It is only released to the owner of the fee. 1 Washburn on Real Estate, 247 and 301, and the authorities there cited. The decision of this case on the former appeal, was not intended to conflict with these well established principles; nor, as the opinion in that case was intended to he understood, does it establish for the settlement of the equities in this case any rule not in harmony with those principles. This Court decided that having united in the several mortgages mentioned in the record, she had released her interest in the lands conveyed by these mortgages, and was therefore against the mortgagees and judgment creditors, entitled to no allowance except as against the appellants Reiff and Horst. They were held to have waived their mortgage by the acceptance of the deed of trust, by the terms of which they were hound, and Mrs. Horst was entitled as against them in equity to the one-twelfth of the sum allowed them for their mortgage claim. This allowance to her was regarded by the Court as a consideration which they agreed should he paid to her for signing that deed. So far as Mary W. Miller and all other persons having claims in like condition, (regarding Mrs. Miller as a representative creditor,) it was held that so far as they had claims which could he enforced as liens on the lands which were mortgaged, and in which mortgages Mrs. Horst had joined, those claims would not he affected by any supposed right of Mrs. Horst in lieu of inchoate dower. There was however one piece of land not covered by any mortgage which did pass by the deed of trust, in which the reservation of one-twelfth of the proceeds was made to Mrs. Horst; and this Court thought that inasmuch as Mrs. Horst had manifestly joined in that deed under the supposition that she would receive compensation for so doing, according to the terms fixed by the deed, it was equitable not to hold her to the consequences of signing that deed without doing equity by her according to some fair rule. Regarding *49 her right, as the law does, during the husband’s life, as having no present value, as it is not the subject of sale, hut only of release to the owner of the fee, we have no scale or standard for ascertaining its present worth. As a rule a wife could not he held as binding the creditors of her husband to pay her from his estate, for her contingent right of dower, just such sum as she may have stipulated with her husband or his trustees should be paid for uniting in the deed, and which was accordingly reserved in the deed; and we repeat what was said in the former opinion delivered in this case, that to so hold “ would be opening a wide door to abuse, if not fraud.” It is very certain that only such creditors as might he parties to the agreement ought to be hound by it, under ordinary circumstances. In this case however, looking to its peculiar circumstances, wherein the wife had barred herself in the larger part of the estate by joining in the mortgages, and had finally united in the deed of trust, with manifest expectation that she was to receive an allowance from the whole estate; and considering the very small value of the parcel which alone is subject to the charge, we think the twelfth part of the proceeds of sale of that parcel, after paying its proportion of the costs of the case, would not he an unreasonable allowance to her as a consideration for her release of expectant right in that parcel. Though not the subject of grant, her right, peculiar as is its character, is the subject of contract for release. The parcel, which was not included in any of the mortgages, and which was intended by the former opinion and decision to he charged with allowance to her, and which is now directed to he so charged, is that piece of mountain land purchased by Mrs. Horst, and is so designated by the auditor in the first audit contained in the record considered by this Court on the former appeal. Viewing the auditor’s report, made and stated in accordance with the opinion and direction of the Court below, in the light of the principles herein *50 announced, it is very evident that the learned Judge did not clearly apprehend the meaning of this Court in its former opinion on the subject. Luthat audit Mrs. Horst is allowed the one-twelfth part of the proceeds of sale, amounting to the sum of $1102.90 ; whereas, according to the true construction of the opinion, and the law of the case, she should only have been allowed the one-twelfth part of the sum awarded to the mortgage of Cearfoss, Reiff and Horst; and the additional sum of one-twelfth of the net proceeds of sale of the piece of mountain land not embraced in any of the mortgages signed by her. There being no other matter before us on this appeal except the allowance to Mrs. Horst, the order ratifying the audit will not he disturbed in any particulars except those specified in this opinion. The order ratifying the audit will be reversed, and the cause will be remanded, to the end that the audit may be corrected in accordance with the directions of this opinion; and that so much of the money erroneously allowed to Mrs. Horst, in that audit, may be awarded to the claimants who would and should have taken it, if the error had not been committed.

(Decided 9th December, 1880.)

Order reversed with costs, and cause remanded.