Opinion
Decided December 6, 1926.
Execution — Proceedings in aid — Section 11772, General Code — Lien effective from time of service — Assignment thereafter for creditors inoperative against judgment of creditor — Contingent dower not subject to levy, execution or judgment lien — "Inchoate" defined — Inchoate right of dower not property — Nor legal or equitable interest in realty — Lien not transferred to purchase money in judgment creditor's favor — By answer waiving dower assignment in proceeding to sell realty — Priority determined by judgment creditor first instituting proceedings in aid.
1. Under Section 11772, General Code, proceeding in aid of execution is effective to bind lien on property from time of service, and assignment of property by debtor thereafter is inoperative against judgment of creditor, though application for injunction to enjoin transfer had not been fully determined or bond given.
2. Unassigned dower or inchoate right of dower is not subject to levy and execution, and is not subject to judgment lien.
3. "Inchoate," as used in "inchoate right of dower," is defined to mean a beginning.
4. "Inchoate right of dower" or right to be endowed of estate of inheritance on death of consort is created by statute by reason of marriage relation, and begins when one consort becomes seized of such estate, but it is not property.
5. Under Sections 11655, and 11656, General Code, providing that vested interest in land shall be subject to levy, inchoate right of dower, which is neither equitable nor legal interest in realty, is not subject to levy and execution.
6. Under Section 12019, General Code, answer by defendant holding inchoate right of dower, filed in proceedings to sell real estate in execution of judgment, consenting to sale and waiving assignment of inchoate right of dower, did not operate to transfer judgment lien to purchase money in favor of judgment creditor, since inchoate right of dower did not give holder any interest in realty.
7. In proceedings to determine priority of liens between judgment creditors, creditor first bringing action in aid of execution against defendants had prior lien on value of debtor's inchoate right of dower against creditor first obtaining judgment, which did not become lien on contingent dower interest of one defendant.
APPEAL: Court of Appeals for Butler county.
Mr. Clinton J. Egbert, for Good.
Mr. Paul Scudder, for the Bank of Trenton Co.
Messrs. Andrews, Andrews Rogers, for Rogers.
The original action herein was brought by Marston Good against Allie Crist, and Beulah Crist, seeking a money judgment on a note and foreclosure of a mortgage on real estate given to secure the note.
Certain lienholders were made parties, and filed their several cross-petitions. Good secured a judgment against Allie Crist and Beulah Crist on February 11, 1924, for the sum of $3,064.
It appears that on November 8, 1921, the Bank of Trenton Company commenced an action against Allie Crist and Beulah Crist, and, on December 15, 1923, recovered a judgment against them in the sum of $895.96. In the meantime, Allie Crist had made a deed of assignment of all of his property for the benefit of his creditors to Harvey Collum.
Sale of the real estate involved in the several actions was made by the assignee. Upon sale, the inchoate dower interest of Beulah Crist, the wife of Allie Crist, was calculated. The value of the inchoate dower interest was found to be $4,943.52 in one case, and $996 in another.
The record also shows that in the actions to sell Beulah Crist filed an answer, in which she made application to the court to have the cash value of her dower interest in the real estate determined, and that she be awarded the same in money. Sale was had, and the value, as above stated, was fixed by the court, and, while the proceeds were in the hands of the assignee, Beulah Crist made an assignment to one of the appellants, John P. Rogers, for the benefit of her creditors.
The questions presented here concern the priority of liens as between Good, the Bank of Trenton, and the assignee, Rogers.
The facts are chronologically as follows:
The Bank of Trenton Company filed suit November 8, 1921. It recovered a judgment on December 15, 1923. On February 18, 1924, it caused an execution to be issued, which was returned unsatisfied on the same day. And, on the same day, the bank filed a proceeding in aid of execution.
Good filed his action on the 29th day of November, 1921, and secured a judgment on February 11, 1924, and, on the same day, caused execution to issue on this judgment. On the same day return was made by the sheriff, "No goods found," and, on the same day, February 11, 1924, Good filed a proceeding in the court of common pleas of Butler county in aid of execution, causing notice to issue to the defendants, Allie Crist, Beulah Crist, and one Harvey Collum, who was the assignee of Allie Crist, with orders to appear in the court of common pleas of Butler county on February 18, 1924, at 9 a.m. A copy of the order was served on these parties February 14, 1924.
On February 16, 1924, as above stated, the Bank of Trenton proceeded in aid of execution against these same parties, and affidavit and notice were served upon them.
It further appears from the record that on the day on which Beulah Crist, Allie Crist, and Harvey Collum, assignee, were summoned, in the proceedings in aid of execution, to appear in court, said Beulah Crist made an assignment to John P. Rogers, the date being February 18, 1924.
Good claims a prior lien by virtue of his prior action in aid of execution, and the notice served thereunder, both as against the Bank of Trenton and the assignee, John P. Rogers.
The Trenton Bank claims a prior lien by virtue of its judgment entered on December 15, 1923, which it contends is a judgment lien on the contingent dower interest of Beulah Crist, upon the theory that at the time its judgment was rendered Mrs. Crist's contingent dower interest was a vested interest by reason of her answer consenting to the sale of the land involved in that case, and that this interest became bound to the payment of its judgment, which was prior in time to the judgment of plaintiff Good.
The claim of the assignee of Beulah Crist is that her assignment to him conveyed all her property and that there was no binding lien upon it at the time of the assignment, and he makes the point that an injunction allowed at the time, enjoining the assignee, Collum, and Beulah Crist from transferring the funds in question had not been finally determined by the trial court, on the motion to vacate, and no bond had been given. Therefore, there was no obstacle to the transfer of the property to him by the assignment.
The answer to the contention of the assignee is contained in Section 11772, General Code, the pertinent part of which is:
"From the time of its service, property, money, or credits in the hands, or under the control of the person or corporation so served, belonging to the judgment debtor, or due from him to such person or corporation, shall be bound, and he or it, as the case may be, thereby made liable to the judgment creditor, therefor."
In the case of Citizens' Savings Trust Co. v. Palmer, 23 C.C., (N.S.), 349, 34 C.D., 290, the court says:
"A lien upon equitable interests, resulting from an action in the nature of a creditor's bill brought under favor of Section 11760, General Code, dates from the date of service of summons upon the trustees, and is prior to liens of creditors who have secured judgments and instituted proceedings in aid of execution while the first mentioned action was pending."
The assignment to Rogers is inoperative in so far as it affects the judgment of plaintiffs.
So it is clear that unless the judgment of the Bank of Trenton became a judgment lien upon the contingent dower interest of Beulah Crist in the real estate, at the time of the sale thereof, then the lien of Marston Good on the funds in question is a first and best lien.
Counsel for the Bank of Trenton claims a judgment lien by virtue of Sections 11655, 11656, and 12019, General Code, and by the application of the principles announced in Bank v. Logue, Trustee, 89 Ohio St. 288, 106 N.E. 21, L.R.A., 1915B, 340. These sections of the Code are as follows:
"Section 11655. Lands and tenements, including vested legal interests therein, permanent leasehold estates renewable forever, and goods and chattels, not exempt by law, shall be subject to the payment of debts, and liable to be taken on execution and sold as hereinafter provided."
"Section 11656. Such lands and tenements within the county where the judgment is entered shall be bound for its satisfaction from the first day of the term at which it is rendered, except that judgment by confession and judgments rendered at the same term at which the action is begun, shall bind such lands only from the day on which such judgments are rendered. All other lands as well as goods and chattels of the debtor, shall be bound from the time they are seized in execution."
"Section 12019. The answer of the widow or widower shall have the same force and effect, in all respects, as a deed or release to the purchaser of such estate of the dower interest therein of such widow or widower."
In the last analysis, the question is: What is the nature of a contingent or inchoate right of dower?
Questions concerning dower, and rights and interests growing out of the same, have been frequently before the courts of the several states, including the courts of Ohio, but we have been unable to find any case, nor has any been cited, directly determining the question here. In the many cases before the courts, each seems to have been decided on the facts of the particular case, without the laying down of a rule of property concerning the same.
It has been frequently held, and it is the law, that an unassigned dower is not subject to levy and execution, and is not subject to a judgment lien. This being the law relating to dower interest, it would apply with equal force to an inchoate right of dower.
Some of the courts have held an inchoate right of dower to be an estate; some have held it to be a contingent right; and some have thought it to be an interest in realty. We do not agree with any of these propositions. Inchoate is defined to mean a beginning.
We are of opinion that the nature of the right may be summed up as follows: When the marriage state exists, and a consort becomes seized of an estate of inheritance, then begins the right of the other consort to be endowed in the estate of inheritance upon the death of the deceased consort. It is a right created by the statute, by reason of the marriage relation. It is not property in the sense in which property may be considered. Notwithstanding, the courts have held the right to be a valuable one, and susceptible of ascertainment as to its value.
Some courts have held that until the death of the consort the right of dower is not an interest in real estate, but is a mere right which becomes consummated as a chose in action upon the death of the consort, and so remains until assigned. If a dower is not an interest in real estate, much less would the inchoate right of dower be such.
Counsel for the Bank of Trenton concedes that prior to the amendment to Section 11655, the decisions as to dower not being liable to levy and execution would defeat his claim of priority, but asserts that the amendment to the section, adding the words, "including vested legal interests therein," changed the rule, and cites the case of Bank v. Logue, 89 Ohio St. 288, 106 N.E. 21, L.R.A., 1915B, 340, in support of that proposition. We have examined the case of Bank v. Logue, and find that the only question there decided was that under the amendment to Section 11655 equitable interests are held to be within the meaning of the statute, which, prior thereto, applied to legal interests only. If the inchoate right of dower was an equitable or legal interest in the real estate in question, then the contention of counsel would be correct, but holding, as we do, that the inchoate right of dower is neither a legal or equitable interest in real estate, the decision has no application, and the statute affords counsel no relief.
Something is claimed from the fact that the holder of the inchoate right of dower had filed an answer in the proceedings to sell the real estate, waiving the assignment of the inchoate right of dower by metes and bounds, and asking that she be awarded the same in money. This is claimed under favor of Section 12019, General Code, which provides that such an answer by the widow shall have the same force and effect in all respects as a deed or release for the purpose, etc. Undoubtedly if Beulah Crist had an interest in the realty, this answer, on her part, would operate to transfer a judgment lien to the purchase money, but this again goes to the question of an interest in the realty, which, as we have shown, did not exist.
Our views on the question, as above expressed, are strengthened and supported by the decision in the case of Long v. Long, 99 Ohio St. 330, 124 N.E. 161, 5 A.L.R., 1343. On pages 336 and 337 of that case, the court, in the opinion, supports our views as to the nature of an inchoate right of dower, as well as the force and effect of the statute question. It reaffirms the case of Weaver v. Gregg, 6 Ohio St. 547, 67 Am. Dec., 355, in effect holding that dower or an inchoate right of dower is not an interest in land, legal or equitable.
There being no judgment lien on the fund in question, it follows that the lien of the plaintiff Marston Good is a first and best lien on the fund in the hands of the assignee of Allie Crist.
Decree accordingly.
BUCHWALTER, P.J., and CUSHING, J., concur.