Keith v. Mellenthin

START, O. J.

Actions for partition of real estate in the county of Lyon, this state. They were heard as one case, and the facts in each, as found by the trial court, are substantially the following: On June 11, 1891, Wesley Keith was the owner of the lands involved herein. ’ He was then a married man, and the plaintiff was his wife. On that day he purported to convey the lands by warranty deed to Lewis Keith and Luther Keith; but the plaintiff did not join in such deed or consent thereto. On July 12, 1892, Lewis Keith recovered and docketed a judgment for the sum of $9,145.82 in the district court of the .county of Ly°n against Wesley Keith, which has never been satisfied. Thereafter, and on January 31, 1893, the plaintiff by the same court was duly granted a decree •of divorce from her husband on the ground of his adultery. At this time he had no real or personal property, but he was then indebted to Lewis Keith on his judgment to the full amount thereof. Thereafter Lewis and Luther Keith conveyed the lands in separate tracts to the ■defendants, respectively, by warranty deeds. The value of the lands at the time of the divorce was $1,120, and $21,600 at the commencement of these actions. Neither the husband nor the judgment creditor, Lewis Keith, is a party to the actions. The trial court found as a conclusion of law that the plaintiff was the owner in fee of an undivided one-third of the lands, that the defendants were the owners in fee of the other undivided two-thirds thereof, and that judgment for actual partition be entered. • The defendant^ severally appealed from the judgments.

There is no controversy as to the effect of the divorce on the contingent interest of the wife in the lands conveyed by the sole deed of hér husband. Section 4808, G. S. 1894, provides that,

When a divorce is ordered for the cause of adultery committed by the husband, the wife shall be entitled to her dower in his lands, in the same manner as if he was dead.

If the husband in this case had died, instead of committing adultery, the plaintiff, by virtue of section 4471, G. S. 1894, would have been entitled to an undivided one-third in fee of the lands in question,

Subject, in its just proportion with the other real estate, to the payment of such debts of the deceased as are not paid from the personal estate.

Therefore, when the divorce was granted for the adultery of her husband, the plaintiff’s contingent interest in the lands became vested, and she at once, without any other proceedings,' became the owner in fee and entitled to the possession of an undivided one-third thereof, subject, in its just proportion with the other real estate, if any, to the payment of such of his debts as could not be paid from his personal estate, and entitled to partition thereof as in other cases. Holmes v. Holmes, 54 Minn. 352, 56 N. W. 46; Johnson v. Minnesota Loan & Trust Co., 75 Minn. 4, 77 N. W. 421.

The defendants, however, claim that, because the judgment against the husband amounts to more than the value of her undivided one-third of the lands, she has in fact no interest therein, and that, as grantees and successors in interest in the land of the judgment creditor, they are-entitled to all his rights and equities in the land, or, in other words, they are entitled to be subrogated to his rights, and that such rights and equities should be determined .and adjusted in this action. It is neither necessary nor proper to here determine the rights -of the defendants, as against their grantor, the owner of the judgment. Unnecessary, because, if it be conceded that the defendants stand in the shoes of their grantor, still the decision of the trial court was right; improper, because the necessary parties are not before the court. This •conclusion necessarily follows from the essential character of the right of creditors of a husband, divorced for his adultery, to subject the Undivided one-third interest of his real estate, which by the diyorce becomes the property of the wife, to the payment of their debts; also, from the method of enforcing the right. The statute makes no provision for the enforcement of the right. Equity affords a remedy by an action brought for that purpose, to which all interested in the matter must be made parties. It is clear that the right does not belong exclusively to any one creditor, but to all the husband’s creditors pro rata. The value of the land is limited, and the amount of the debts uncertain; hence no one creditor can maintain an action to subject the land exclusively to the payment of his debts. The action must be an equitable one for the benefit of all the creditors, in which the former wife will have the right to contest the validity of each creditor’s claim; also, the question of the amount and value of the personal property of the husband and of his other real estate. Creditors may in such an action contest the claims of each other. Bell v. Mendenhall, 71 Minn. 331, 73 N. W. 1086, and 78 Minn. 57, 80 N. W. 843.

The fact that in the case at bar the court found the amount of the claim of the defendant’s grantor, that it had not been paid, and that the husband had no real or personal property, is not material; for the plaintiff has the right to contest all these matters in an appropriate action to which all creditors are parties, so as to be bound thereby. The defendant’s grantor is not a preferred creditor. The judgment was not against the plaintiff, or a legal lien on her contingent interest in the lands; for the judgment debtor conveyed his entire estate in the lands before the judgment was docketed. If the plaintiff had died after such conveyance without having been granted a divorce, the title of the husband’s grantees would be absolute.

The setting off to the plaintiff in severalty of her undivided third of the lands will not prevent or embarrass an action on behalf of the creditors of her husband to subject her land to the payment of its just proportion of their debts. The defendants for obvious reasons ought not to be permitted to convert this action for partition into an action to enforce the right of creditors to subject the plaintiff’s interest in the land to the payment of their debts. Were it otherwise, the proper parties are not before the court. It follows that the trial court’s conclusion of law is fully justified by its findings of fact.

Judgment affirmed.