Simon v. Rathfen ( 1915 )

Spencer, J.

On September 2, .1861, one Amos Parrott died intestate in Huntington County, Indiana, the owner and in possession of certain real estate situated- in Wabash and Huntington counties. He left as his only heirs at law a widow, Mary, and six children. On November 13, 1863, the widow married one Jonah Irey, and they lived together as husband and wife until his death in 1902. No children were born to this marriage, and at her death, intestate, on January 3, 1907, Mary Irey left as her only heirs at law her said six children by Amos Parrott. On October 16, 1861, Mary Parrott, the widow, and one Lewis Shelley were duly appointed as administrators of the estate of Amos Parrott and on October 5, 1863, they filed in the court of common pleas of Huntington County a petition to sell real estate located in said county for the-payment of debts. Pursuant to this petition the property was sold under order of court to one Aaron McKinney and the proper deed was executed to him. The widow filed her consent to the sale of the property and on October 14, 1864, as Mary Irey, she conveyed said real estate by a quitclaim deed, in which her husband joined, to said McKinney, who thereupon took possession of the land and claimed to be the owner thereof in fee simple. Subsequently, by mesne conveyances, the property passed to William A. Rathfen and David C. Thomas, two of the appellees herein, who are now in possession of the same. After the death of their mother on January 3, 1907, the children of Amos and Mary Parrott conveyed by quitclaim deeds all of their interest in said land to the appellants herein, who, on December 29, 1908, instituted this action to establish their title to one-third of said real estate and to have partition thereof.

1. 2. Section 3015 Burns 1914, §2484 R. S. 1881, provides that “If a widow shall marry a second or any subsequent time, holding real estate in virtue of any previous marriage, and there be a child or children or their descendants alive by such marriage, such widow may not, during such second or subsequent marriage, with or without the assent of her husband, alienate such real estate; and if, during such marriage, such widow shall die, such real estate shall go to her children by the marriage in virtue of which such real estate came to her, if any there be.” Under this statute it is contended that the quitclaim deed from Mary Irey and Jonah Irey, her husband, to McKinney was wholly void and served to convey to appellees’ remote grantor no title to the undivided one-third interest in the property which was inherited by Mary Irey from her first husband; that the title to said one-third interest- remained in Mary Irey until her death and then passed under the statute to her six children, who conveyed the same to appellants. There can be no doubt that the deed in question was void. Kemery v. Zeigler (1912), 176 Ind. 660, 663, 96 N. E. 950, and cases cited. But it does not necessarily follow that appellants’ grantors inherited any interest in the property which said deed assumed to convey. Section 3015, supra, does not vest in the children of a previous marriage any interest in property which their mother holds in virtue of such marriage. She takes the fee simple estate, qualified only to the extent that if she remarries a second or subsequent time, she may not alienate such real estate during the second or subsequent coverture. The statute further directs that in the event she should die during her second or subsequent coverture, the property thus inherited from her former husband shall pass to their children, if any. The evident purpose of this provision is to prevent the inheritance by a second or subsequent husband of property which his deceased wife has received from a former husband as against children or descendants of the previous marriage. But it is only in the event that their mother dies during the second or subsequent coverture that such children can acquire any rights under this statute. As was said by this court in the case of Irey v. Mater (1893), 134 Ind. 238, 248, 33 N. E. 1018, which involved a part of the lands owned by Amos Parrott at the time of his death: “The interests of such children will not become consummated until the happening of the event provided for in section 2484 R. S. 1881, limiting the right of the widow of any decedent to convey during a second coverture, and, in the event of her death during such second coverture easting such property as she received in virtue of her former marriage upon the children of such former marriage. If the widow of Amos Parrott dies during her second or subsequent coverture, the one-third of said land so received by ber in virtue of her marriage with Parrott will descend to his children, without regard to any disposition she may have attempted to make of it during such second or subsequent coverture.” Mrs. Irey, however, survived her second husband, and as she did not marry again, the statute here under consideration does not control the dis-. position of her estate or any part thereof. The inheritance of appellants’ grantors, as the sole heirs-at-law of their mother, is governed by §2990 Burns 1914, §2467 R. S. 1881, and under that statute they inherited in equal proportions such property as she owned at the time of her death. While the deed executed by Mary Irey and her husband was invalid, yet possession under that deed was sufficient to give color of title as against the grantors and to set in motion the statute of limitations^ That is the express decision of this court in Irey v. Markey (1892), 132 Ind. 546, 32 N. E. 309, an action in which Mrs. Irey and her husband unsuccessfully sought to recover possession of the property now in controversy. The operation of the statute of limitations served to bar Mrs. Irey from asserting any title to the land and vested the title in the occupying claimants, subject to the contingency that her death during coverture would authorize a recovery on the part of her children under §3015, supra. As she survived her second husband and died a widow, that statute could not operate, and as her own title to the property had been cut off by the statute of limitations, no interest therein could pass to her heirs under the law of descent.

The judgment of the trial court is affirmed.

Note. — Reported in 110 N. E. 679. As to widow as heir, see 112 Am. St. 1024. On a quitclaim deed as color of title for purposes of adverse possession, see 4 L. R. A. (N. S.) 776. See, also, under (1) 14 Cyc 75, 78; (2) 14 Cyc 78.