402
FEDERAL REPORTER.
is not, in a proper sense, the commencement of an original suit, but is rather a mere continuation of the former suit. Harrington v. Slade, 22 Barb. 166j Lloyd v. Johnes, 9 Ves. 37; Adams, Eq. *408; Hoxie v. Carr, 1 Sum. 173. In this latter case, Judge STORY, discussing the effect of a transfer of the plaintiff's title pendente lite, says that the abatement ,in-equity which might thereby ensUe would not necessarily be a destruc-tion of the suit, like anabatenlent at law, but merely an interruption of, the suit; suspending its progress until the new party is brought before the court. And in Olarke v. Mathewson, 12 Pet. 164, it was held that the federal court has jurisdiction'of a bill by the administrator of a deceased plaintiff to revive a suit abated by the plaintifI's death, notwithstanding the administrator:is a citizen of the same state as the defendants, and the origin-al jurisdiction depended on the citizenship of the parties. The doctrine of the case is that, where the court has once acquired jurisdiction of the cause, a supplementary proceeding may be parties. The prinmaintained ,without regard to the citizenship of ciple is applicable here, and justly,SOj for thebank:was a creditor of the bankrupts, and thus; was directly!interested in the original bill; and for 'its protection, having bought theJitle of the assignees when exposed to public sale, it ought to have the benefit of the suit brought by them. Otherwise, and if driven to a new suit, the bank might, perhaps, be subjected to the bar of the statute of limitations. Section 5057, Rev. St. , And now, June 1, 1886, leave is granted to the Metropolitan National Bank to file its bill. .
.
' ,
PEIRCE, v. O'BRIEN and' (Oirc'Ult (Jourt, N. D.1()'l/Ja, E.D. . "
. "
. ',-Term, '
1888.)
1.
DOWER-WHAT S'rATUTE·GOVER:NS.
In determining the extent of a real property alienated by her husband solely in his life-UJP,e, the law,ln,force at the time of the alienation governs. " .' , ' '. . ,
2.
chaser, or his sueces.sors, in good faith, supposing thllir grantor to have been , unmarried, an<l the mcreased caused thereby, are tQ be excluded; and this rule is not affecte<l by II change in the law makmg theeiltate of the widow a fee-simple instead of a life-estate.' '
. In determining, the value of; such a right, improvements made by the pur-
ALmNATED BY HUSBANn-:-IMPROVEMENTS BY PURCHASER·
In Equity. Ex;cepUQns to Noble &; Updegrq,jf andlff5!lderBfYTl,; Hurd, &; Daniels, for complainant. L. E. Fellow8, for defendants; .i
J. From theaverm,eots of the bill and answer, it appears that one George S. Peirce died on :theeleventh day of July, 1882, leaving complainant his widow,·they having been married on the ninth day of March, 1852; that from 1858·until February 2, 1869, the said George , :SH1RAS,
PEIRCE V. O'BRIEN.
(03
S. Peirce was' the owner in fee-simple of 120 acres of lands situated in Alamakee county) Iowa, and that on the last-named day said Peirce sold thela.nds to One Mary O'Brien, from whom the same passed to the present defendants; that the complainant did not join in the sale or conveyance of the lands; thatthe said Mary O'Brien and her grantees did not know that George S. Peirce was a married man, and took title in ignorance of the rights of complainant, and have since placed valuable improvements upon the land, in the belief that they were the sole owners of the property. The main question presented by the exceptions to the answer is whether, in determining the value of the widow's right. the improvements placed upon the property by the defendants, and the increased value caused thereby, are to be included or excluded. The law in force at the time of the alienation by the husband determines the extent of the widow's right. Young v. Wolcott, 1 Iowa, 174; Moore v. Kent, 37 20. In the case of Felch v. Pinch, 52 Iowa, 563, S. C. 3 N. W. Rep. 570, it appeared that the husband conveyed certain landsin December, 1856, the wife .not joining in the sale, and in 1876 a petition for assignment of dower W8lil filed, the husband having died in 1862; and it was held that the widow took a life-estate, because that was the extent of her right undei' the' statute in force in 1856, when the lands were alienated by the husband; and "that the widow takes her dower in the value of the property without 'the improvements put thereon by the labor and money of the grauteesof her husband, but including such increased value of the land as has been caused. by the general growth a.nd prosperity of the country." It is, however, stated in the conclusion of the opinion that "it will be understood that this case is based upou the statute which was in foroeat the time the rights of the plaintiff accrued. Sinoe that time the lawoi dQwer has been materially changed. It is now held by a different tenure, and possibly may be controlled by different rules. The case at must be oonsidered as resting upon its own peculiar faets, and upon the statute in force at the time the rights of the plaintiff as a . doweress attached." It is impossible to determine, with absolute certainty, the meaning that should be attached to this warning and caution. The case involved peculiar facts, and it may be that the court deemed it wise to limit the effect of the decision, without intending to throw doubt upon the correctness of the general rule announced, to-wit, "that the widow shall not profit by the labor and money of the grantee of the husband, expended in enhancing the value of the land," because it is declared that this rule "is founded upon the broadest principles of equity, which preclude one person from reapiugthat which another has innocently and rightfully sown." The widow is now, and was in 1869, when the alienation in the present ease took place, a fee-simple instead of a life-estate, but just as much now, as under the former statute, the right is in the property of the husband. When an alienation takes place by the husband,
404:
without the wife joining therein, her right is to one-third of the propertyas owned and possessed by the husband, and not 11 right to onethird, also, in the improvements put thereon by the labor and money of one in whose property she has no right. I am not able to find anything in the statute of Iowa, changing the right of the wife from a lifeestate to one in fee-simple, which indicates the intention of the legislature to change the equitable rule recognized in Felch v. Finch. The statute now in force (section 2440, Code) declares that "one-third in value of all legal and equitable estates in real property, possessed by the husband at any time during which have not been sold on execution, or any other judicial sale, and to which the wife has made no relinquishment of her right, shall be set apart as her property in feesimple, if she survive him.'" The clear intent of this language is to confer upon the wife one-third in value of the estate possessed by the husband, and certainly there is nothing in the language used which countenfl.nces the idea that it was the iutent of the legislature to .confer upon the wife, in addition to the one-third in vRlueof the estate as possessed. by the husband, a one-third in the value added to the estate as possessed by the husband, by the improvements placed thereou by the husband's grantees. If the contrary was held to be the rule, it would result in preventing the improvement ofall property in which the wife's interest had not been conveyed. A person who, as in this case, should purchase and take a conveyance of property from a grantor who was supposed to be unmarried, and should then ascertain that the grantor was in fact married, would practically be debarred from improving the property, if the law was such that one-third in value of the improvements thus put on the land would become the property of the wife, in case she survived her husband. The rule, if adopted. would work with especial hardship in cases of city property, where the value of the buildings in many cases so largely exceeds the value of the lots upon which they are built. In the interest of the public, it is unwise to burden property in such a manner as to prevent its improvement, and this consideration adds weight to the thought that it could not have been the intent of the legislature, by changing the tenure of the dower right from a life to a feesimple estate, to also enlarge the extent of the right by including therein the value of improvements placed upon the land by the grantees of the husband, and which formed no part of the estate possessed by the husband. The rule limiting the rip;ht of the widow to one-third of the value of the estate, not including the value added thereto by i)nprovements put upon the property by the grantee of the husband, is the general doctrine of the American courts. 2 Scrib. Dower, 573-586; Thompson v. Morrow, 5 Sergo & R. 289; PoweU v. Mar/ban, etc., Manuj'g 00., 3 Mason, 347. Seeing no reason, therefore, why this rule is not as sound a construction of the statutf' in force in 1869, when the alienation in the present case was made, as it was of the statute in force when Felch v. Hnch was decided, it must be held to be the rule governing this case; and, so far
WOOD'll. WELPTON.
405
as the exceptions question the correctness of this interpretation of the statute, the same are overruled. The exceptions also raise other questions, affecting some matters of form in the answer, but as counsel stated that the main purpose was to settle the rule upon the question already decided, and as the other matters do not in any way affect the merits of the controversy, they will be deemed to be waived, and no ruling is made thereon.
WOOD and another'll. WEJ,PTON and others. (OWcuit Oowrt 8. D. Iowa. W. D. November 19,1886.)
F'RAUI>--,FoRGED DEEI>--,T.A.X SALE-REDEMPTION-By WHOM.
B. purchased complainants' lands at tax sale. M.. by means of a forged deed frow complainants' gr/tntor, procured an assignment of the tax certificates to himself after the time of redemption had expired, and had the treasurer's deed made out to himself. Held, that the purchase by M. of the tax certificates could not be a redemption of the land, because M. had no real title to the land. Held, that M. could notbe held as a trustee of complainants, because com· plainants had no interest under the tax sale.
SAME-TRuST.
.8.
SAME-WHO MAY COMPLAIN.,
Held, that M.'s fraud was one of which B. could complain, and for which he might rescind the contract of sale, but that complainants' rights were not affected thereby. .
In Equity. Bill to quiet title. , James A. Ne-w and Horace Speed, for complainants. C. E. Richards and Smith McPherson, for defendants.
SHIRAS, J. The subject of controversy in this suit is the ownership of 320 acres of land, situated in Montgomery county. Iowa. The complainants claim title under one Seward Wilson, who bought the land in question in 1862, the deed therefor to Wilson being recorded in July, 1862. Seward Wilson died in 1874, leaving a widow and several chilclren surviving him. The widow and children, being the heirs at law of Seward Wilson, who died intestate, conveyed their interest in the land to Mary E. Wood, who in turn conveyed an undivided one-half interest to Leander Roberts; the said Mary E. Wood and Leander Roberts being the complainants herein. On the seventh of December, 1868, the treasurer of Montgomery county sold said lands for delinquent taxes of the years 1858 to 1867, inclusive; one P. P. Johnson purchasing the E. ! of theS. w. t of section No.n, township 72 N., ofrange 37 W., and one Walter B. Beebee purchasing the remainder of the 320 acres. Before the expiration of the period of redemption, Johnson assigned his certificate of purchase to the 80 acres to one H. N. Moore, to whom the. treasluer'g deed was subsequently issued in proper form. The said Moore .also procured the assignment of the certificate of sale to W. B. Beebee,
