Rockwell v. Rockwell ( 1890 )

Long, J.

The bill in. this cause alleges, substantially, that on April 22, 1857, complainant intermarried with one Samuel R. Rockwell, at Brockport, N Y.; that at that time she was a resident of that state, and before the marriage she received letters from one Hiram Richmond then a resident of the town of Porter, Cass county, this State, urging her to marry said Eockwell, and giving many reasons why she should do so, and stating that he was the owner of a large farm in that township, adjoining his, and was a man of large means; that on April 10, 1857, she saw said Eockwell for the first time' at her home in New York, and who then declared he had come to marry her, and asked her if she had received Richmond’s letters, and what she thought about his proposition; and that he then said to her that he was the owner of 200 acres of land in Cass county, and of personal property,, and was worth at least $8,000; that soon after the marriage she removed with said Rockwell to his said farm in. Porter, this State, and resided there with him on said farm for about six years, and from there removed with, him to the village of Constantine, St. Joseph county, and there resided with him until his death, on December 16, 1884.

That at the time of said marriage said Rockwell had five children by a former marriage, and all of whom at that time were under 21 years of age, and one of whom,. Henry Orville Rockwell, died in February, 1860; that at the time they resided on said farm Rockwell claimed it as his own, had the entire control of it, cultivated it himself, and marketed the crops, and exercised complete-supervision over it in all respects; that the said lands were described as the south-west quarter, and the northwest quarter of the south-east quarter, of section 25, township of Porter, Cass county; that in the summer of 1858 said Rockwell flirted a paper in her face, which he-called a deed, and declared that “if he had a woman whom he could not control he had her fixed," and told-her “he would have it recorded then and bring it to life;” that this was the first intimation she ever had that he claimed said land had been or would be conveyed, as. he had always declared and claimed that the land was his, and did not then deny that the land was his, but threatened what he would do.

That in 1874 she found to her surprise a paper in the desk of said Rockwell, purporting to be a deed, dated, February 15, 1857, purporting to convey said land to his children, George B. Rockwell, Francis M. Rockwell, John D. Rockwell, Henry O. Rockwell, and Edson W. Rockwell, which deed purported to be recorded April 14, 1874; that about that time she and her husband had some trouble, and that he then executed his said threat, and put said deed on record; that said deed was made in contemplation of marriage with her, in fraud of her dower rights in case she married him, but she avers that it was not delivered to the grantees therein at any time until long after their said- marriage, and was in fact in his possession unrecorded more than a year after their marriage; , that said Samuel R. Rockwell had long been the owner of said lands in fee-simple when he married her, and if he ever conveyed them to any person it was long after his said marriage, or, if before, in fraud of her dower rights; that said lands are now claimed to be owned by the defendants, John D. Rockwell and Edson ~W. Rockwell, two of the sons of said Samuel R. Rockwell, by conveyance by deed and by inheritance, and who hold the same in two farms, each occupying and cultivating the portion held by him; that before the signing of this bill she made demand of her dower in said lands of said defendants, who refused to acknowledge any dower interest of the complainant therein.

The bill prays that complainant may be awarded her dower in said described lands, or a sum of money based upon the value of her dower interest therein, and that the interest of it be set apart for her during her natural life.

The defendants put in a joint answer, and admit that said Samuel R. Rockwell once owned the land described in the bill, but say that long before he knew the complainant, or contemplated marriage with her, he made the deed, and very soon after the death of their mother, the first wife of said Samuel R. Rockwell, he delivered the same to his oldest son, George B. Rockwell, for all the grantees therein named; that by said deed said Samuel E. Eockwell reserved a life-estate in said lands, and substantially the absolute control thereof, so far as the cultivation thereof was concerned, but that after the grantees grew up and became physically able to work, and able to manage said farm, their father and complainant left said farm, arid moved to Constantine, as stated in the bill, some time in the year 1863; that at that time the grantees in said deed assumed absolute charge and control of it, and managed it as their own, conveying to each other until these defendants became the owners of said land by conveyance from their co-grantees; that since taking said farm in 1863, they have cleared about 40 acres of it, and have taken the stone out of all the cleared land, have built two new dwelling-houses, costing $4,500, and new barus, granaries, and barracks, costing about $400, have dug three wells, costing $200, set out an orchard of 160 fruit trees, built fences, and made other permanent improvements, which, with the barn now being built by said John D., will cost at least $2,500; that they have made permanent improvements of the value of at least $6,000; that they were put upon the land with the full knowledge of complainant, and under claim of absolute title publicly made, and which was acquiesced in by complainant.

They deny the statements in the bill that said complainant was informed by their father that he was the owner in fee of said land, but allege that she was in fact informed that he had a life-estate only in said lands; that she knew of such deed at the time of her marriage, and that after her marriage she for a long time had it in her possession, and showed it to her neighbors, and both before and after it was recorded mutilated it by altering its dates, and erasing and rewriting names and dates in it. They deny that it was made in fraud of dower, and allege that complainant knew that they were intending to buy the interest of their brothers in said land, and pay a large sum of money therefor, in reliance upon said deed, and that she made no claim whatever upon said land until the death of their father; that they, with complainant's knowledge and consent, bought out their brothers in 1874, paying therefor $2,000.

A general replication was filed, and the testimony taken before a special commissioner under stipulation. On the hearing other and further testimony was taken in open court. The court below on the hearing made a final decree granting the prayer of the bill, and fixing the value of the dower interest of the complainant in the pi’emises, and giving the defendants an option to pay the same at the time and in the manner determined by the decree, or that the dower of complainant be set off, and defendants to pay the value of the use of the premises, which is fixed in amount by the decree; complainant to recover costs. From this decree defendants appeal.

The defendants claim that this deed was made in the year 1855, and prior to the death of the first wife, and delivered to George B. Rockwell by his father in the year 1856, to hold for the benefit of all the grantees named in the deed; that the deed was made under an agreement by Rockwell with his first wife so to convey, for the reason that the equitable title was in the wife, and the title only rested in Rockwell as trustee to her use, the land having been purchased with her money. The original deed was produced, and it bears upon its face evidence of alteration in its dates, and in the date of the certificate of acknowledgment, and from which it is impossible to determine the true date of its execution or acknowledgment. The deed was recorded April 14, 1874, and from the record the deed purports to have been executed February 18, 1856. The original deed presented here bears the date of February 18, 1857, but the figure “7,” it is quite evident, was written over an erasure. It purports also to have been witnessed by Anson Dibble and D. P. Ward, and the certificate of acknowledgment made by Anson Dibble, justice of the peace.

On the hearing in the court below there seems to have been no controversy but that the signatures to the deed were the genuine signatures of Dibble and Ward, and of Samuel R. Rockwell. Mr. Dibble, it is shown, died August 30, 1855, Mr. Ward died May 9, 1857, and the first wife of Mr. Rockwell died September 2, 1856. If the deed was executed in the year 1855, and delivered to George B. Rockwell, for all the grantees named therein, in 1856, then no claim can be made that it was executed and delivered in fraud of complainant, for it is shown conclusively that at that time Samuel R. Rockwell had no acquaintance with the. complainant; and the deed was not made in contemplation of marriage with her, but was made and delivered at a time when Samuel R. Rockwell had full power to convey his property to his children.

The testimony given on the hearing in the court below tends strongly to show that this deed was executed in the year 1855. It can be reconciled in no other way without the conclusion that not only the defendants’ witnesses have testified falsely, but that complainant’s witnesses also have committed the same offense. At the outset of the examination of the witnesses for the complainant, it was shown by their direct examination that Samuel R. Rockwell stated to various parties that he made this deed before his first wife died, and before he and his first wife went to New York on a visit. There is some contention as to the time this visit was made to New York; the complainant contending that it was in 1856, and the defendants claiming it was in 1855. This does not, however, become very important; the material question being as to the time when the deed was made. We need not go over the testimony given upon this branch of the case. It is sufficient to say that we are satisfied that the deed was executed before Mr. Dibble; that he took the acknowledgment, and he and Ward witnessed it; and it is not disputed that Dibble died August 30, 1855; so that, if the deed was executed on February 18, it was the February of 1855. The testimony of the witnesses upon both sides of this controversy can be reconciled in no other way, except to hold that a great number of persons of apparent respectibility and standing in that community are either greatly mistaken or have given false testimony. Mrs. Rockwell, the complainant, testified that the body of the deed was in the handwriting of Samuel R. Rockwell. ■John Hartman and Gabriel Eby, each of whom had known Rockwell for years, and knew Dibble and Ward in their life-time, testified to the genuineness of the signatures of these parties to the deed. William Dibble, a son of Anson Dibble, also testified that the signature of Anson Dibble to the deed was his genuine signature. Other witnesses also testified to the same facts. Many of the witnesses on the part of the complainant, as well as the defendants, also testified to conversations with Samuel R. Rockwell, in which he stated he made the deed at the request of his first wife, and before the time of their going east. This is in keeping with the honesty of all the parties, and is not controverted by any fact, circumstance, or testimony worthy of notice.

The fact is also established by the evidence that the deed was delivered to the son George by Samuel R. Rockwell, for the use and benefit of all the other grantees, some time in the year 1856, and long prior to the time of any thought of marriage by Samuel R. Rockwell with the complainant. Some testimony was also given on the part of the defendants showing that soon after the marriage complainant was advised of the existence of the deed, and that she stated she supposed when she married Rockwell he owned the farm, but she had found out that he did not, and that it belonged to the boys. It is also shown that the complainant knew of the several deeds passing between the sons by which the defendants in this cause procured their titles, and that she set up no claim then to the premises, and never made any claim -until after the death of her husband.

It is also claimed, and we think with much force from the testimony given, that the lands in controversy were purchased with money belonging to the first Mrs. Rockwell, and that Samuel R. Rockwell held the land in trust for his first wife. It is claimed that the deed to Rockwell was made before resulting trusts in lands were abolished. This question does not, however, become material to the rights of the parties to this controversy.

The complainant’s bill is grounded upon the claim that-the deed was made in contemplation of the marriage of Samuel R. Rockwell with her, and therefore a fraud upon her dower rights in the property. This certainly is-not sustained by the proofs. It appears that her husband left some property at his death, in the village of Constantine. That is not in controversy here. Defendants, counsel call attention to the fact that the complainant-found this deed among her husband’s papers in his desk, and made several copies of it, which she exhibited to her neighbors and friends, as well as the original deed before it was recorded; and some claim is made that complainant was the only party interested in changing the dates from 1855 to 1857, so as to bring the date of its execution within the time of the contemplated marriage of the parties; but just how the deed came to be changed in its dates, or the motive in doing so, need not be inquired into, as we are satisfied of its true date before its alteration. The title in fee to these lands passed, under this deed in 1856 to George B. Rockwell, Francis M. Rockwell, John D. Rockwell, Henry O. Rockwell, and Edson W. Rockwell. The defendants acquired the rights in said premises by purchase of George B. and Francis M. Rockwell, and are entitled to such rights, as well as their own interests, freed from any claim of the complainant for dower therein.

It appears, however, that Henry O. Rockwell died intestate, leaving no widow or issue. At his death, therefore, his father, Samuel R. Rockwell, took an undivided one-fifth interest in fee in the premises, and held that interest as tenant in common with the defendants at the time of his death. In this one-fifth interest the complainant has a dower right.

Some claim is made that the complainant is estopped from making claim to dower on the ground of her acquiescence in the arrangement by which the defendants purchased the interests of their brothers; that she stood! by and knew that they were paying large sums of money for such interests, and made no claim. This would not, however, operate to estop her from setting up such claim now. All these purchases were made prior to the death of her husband, and, her dower at that time being only a inchoate right, it was not necessary for her to assert her claim then.

The decree of the court below must be set aside. It is manifest to us, however, that there is no sufficient data from which decree can be made here which will satisfy the rights of all the parties. The property has been greatly increased in value by improvements made by the defendants. What the value of the premises is, aside from such improvements, is not made to appear. It is quite evident that the premises are so situate that thev cannot be divided by metes and bounds, setting off one-fifth part, and then admeasuring dower therein, without' great injustice to the defendants. The cause will therefore be remanded to the circuit court in chancery of Cass county to ascertain the value of the lands aside from the improvements made by the defendants, and upon one-fifth of such value admeasure out of the rents and profits thereof the dower interest of the complainant, in accordance with the provisions of How. Stat. § 5743. No costs in this Court will be awarded; complainant to recover the costs of the court below.

Champlin, C. J., Grant and Cahill, JJ., concurred with Long, J.