Davis v. Davis ( 1924 )

POLLOCK, J.

Stella Davis brought an action in partition alleging that she was the owner of one-tenth interest in two tracts or parcels of land and that Harry Davis is the owner of nine-tenths of these tracts and that Gertrude Davis is the wife of Harry, and that she was called upon to set up her interest in the same or be forever barred. Gertrude Davis filed an answer in which she denied the right of plaintiff to have partition and also alleged that prior to 1923 her husband was the sole owner of the premises in question and that in June of that year he conveyed to plaintiff one-tenth interest in the premises described and that said conveyance Was made for the purpose of cheating and defrauding defendant. The trial court refused partition and found that the conveyance was a mortgage, ordered foreclosure, and a sale of the one-tenth interest. An appeal was taken. In granting partition of the first tract, the Appeals held:

1. Neither contract nor conveyance of Harry Davis to Stella Davis could destroy the wife’s right to dower in the property nor could the court in granting partition of any part of this property destroy that right.

2. As no foreclosure was asked for, the court had no right to order a foreclosuure of the premises.

3. Where there is an outstanding estate for life vested in a third person in the whole of the premises of which partition is sought, re-maindermen cannot have partition. Therefore, the second tract of land could not be partitioned.