McKelvey v. McKelvey 75 Kan. 325, 89 P. 663

*328The opinion of the court was delivered by

Greene, J.:

Before examining the errors assigned it should be ascertained whether the, plaintiff ever had any interest in the- land in controversy, and, if so, the nature of such interest, and whether it was barred by the statute of limitations. If the facts stated in her petition disclose that she never had any interest in the land, or that her cause of action was barred by the statute of limitations, no errors committed on the trial could be prejudicial to her.

Upon the first question here suggested it is contended that under our statute a non-resident wife has no interest in the real estate of her husband situated in Kansas, and therefore that it was impossible for plaintiff’s husband and the defendant to commit a fraud upon her right by any act with reference to such real estate. Our statute provides:

“One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee simple, upon the death of the husband, if she survives him; provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state.” - (Gen. Stat. 1901, § 2510.)

This statute does not discriminate against a nonresident wife in favor of a resident wife 'as to the interest the former shall have, in the real estate of her husband situated in Kansas. It excludes her from any interest in any lands owned by the husband of which he has made a conveyance, when the wife at the time of the conveyance is not or never has been a resident of the state, and it excludes both the resident and non*329resident wife from any interest in any lands which have been sold on execution or other judicial sale. But as to lands not thus disposed of, and not necessary for the payment of his debts at the time of his death, the interest of the non-resident wife is equal to that of the resident wife. The interest which the statute gives to the wife in the real estate of her husband during his life is not easily classified or defined. Because of this difficulty it has been thought by some to be in its nature an inheritance, and such a suggestion may be found in some of the opinions of this court. But practically the entire trend of the decisions of this court is to treat it as a present existing interest — one which the wife may protect by an appropriate action during the life of the husband and against his wrongful acts. (Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245; Flanigan v. Waters, 57 Kan. 18, 45 Pac. 56.)

The wife’s interest does not depend for its inception upon the death of the husband, as an inheritance would, but springs into existence by operation of law upon a concurrence of seizin and the marriage relation. This interest, equal to one-half in value of all the real estate in which the husband at any time during the marriage had a legal or equitable interest, which has not been sold on execution or other judicial sale, and which the husband has not conveyed at a time when his wife was not or never had been a resident of this state, and not necessary for the payment of his debts, upon the death of the husband shall, under the direction of the probate court, bé set apart by the executor as her property. And the only control exercised by the probate court or the executor or administrator over the wife’s interest in the real estate owned by her husband at the time of his death is to ascertain its value and set it apart to the widow — not as an heir of her deceased husband, but as her separate and absolute property in fee simple. And since this interest does not come to her by inheritance it is not a bar to her recovery that her husband *330parted with his title in such a fraudulent manner that neither he nor his heirs can recover it.

This section, as observed, excludes the wife from any interest in lands which have been sold on execution or other judicial sale. It is contended that this land was sold under execution sale and that the defendant holds his title through such sale. The statute contemplates only such execution and judicial sales as have become necessary for the payment of the debts of the husband. It does not contemplate collusive and fraudulent execution or judicial sales to which the husband is a party and which have no other object than to devest the husband of his title for the fraudulent purpose of depriving the wife of her interest in such property. All fraudulent judicial or execution sales are void as between one not a party but having a vested interest in the res and those in collusion with or participating in the fraudulent transaction. The title to the real estate in controversy is claimed by one who it is alleged was a party to the fraudulent proceedings which de-vested the title of John C. McKelvey. If the proceedings were collusive and fraudulent, such a sale did not have the effect, at least as between the plaintiff and those who were parties to the fraud, of defeating her interest in the land.

The principal question litigated in the trial court was whether the judgment and the proceedings by means of which the title of John C. McKelvey to the lands in controversy became devested and the title thereto vested in the defendant, John A. McKelvey, were collusive and fraudulent. The court made special findings that they were not.

Upon the trial the plaintiff, for the purpose of upholding her contention that such proceedings were fraudulent, and wanting in consideration, while the •defendant was upon the witness-stand and under cross-examination, asked him this question:

“I will ask you to state to the court whether when *331that deed [being the deed from Bell to the defendant] was delivered to you on the 3d day of January, 1884, you paid to Doctor Bell the sum of $8000 ?”

An objection was sustained to this question. This is alleged as error. It was an attempt to elicit information upon one of the controverted points — the want of any consideration passing from the defendant to Bell for the deed to the land. The deed purports to have been executed for a consideration of $8000,' and the ruling of the court excluded the plaintiff from inquiring into the actual consideration. This error appears more pronounced in view of the evidence of the defendant that when he came to Kansas, in 1883, less-than a year before the deed was executed, all the property he owned whs a one-half interest in a butcher shop, the total value of which was about $350, and the finding of the court “that when John A. McKelvey came to Kansas in 1883 he did not have to exceed $150, and that he has not received any money or property by inheritance from any one.” Under the pleadings the plaintiff should have been granted the greatest liberty in the examination and cross-examination of all the parties alleged to have been connected with the passing of this title, which she claimed was obtained by collusion and fraud. The ruling of the court deprived her of a substantial right.

While a decision of the question raised by the second defense is not necessary to the present disposition of the cáse in this court, it will become important in a retrial of the cause, and for this reason we feel called upon to pass upon it. The contention is that the defendant has for more than fifteen years been in the open, exclusive and adverse possession of the land, claiming it as his own, under color of title, and that if the plaintiff ever had any rights thereto her right of action is barred by the statute of limitations. In this contention it is assumed that the plaintiff’s right of action accrued when the execution sale passed the *332title from her husband. While it has been held in this state that the wiffe may, during the lifetime of her husband, institute some proceedings to protect her interest in her husband’s real estate, as in the Busenbark case, supra, all remedies are not open to her during the life of her husband, £ind the remedy pursued by the wife in this case is one of those she' was not entitled to invoke during the lifetime of her husband.. Notwithstanding the interest of the wife in the real estate of her husband, during his lifetime she may not maintain ejectment or partition for such interest. It is. only upon his death that her right of action in ejectment accrues to her. This suit was commenced within two years after the death of the husband; therefore,, it was not barred by any statute of limitation.

.The judgment is reversed and the cause remanded..

Johnston, C. J., Burch, Mason, Porter, Graves,, JJ., concurring.

Smith, J.

(concurring specially) : I concur in the decision of this case for the following reasons: It is admitted that plaintiff was the wife of John C. Mc-Kelvey at and long prior to his death, and while such relation existed he was seized of the land in question and made no conveyance of it. To the claim that it was sold during his lifetime on an execution to satisfy a judgment for money rendered against him, Mrs. Mc-Kelvey offered evidence impeaching the consideration claimed to have been paid for the transfer of the land to the son, John-A. McKelvey. This evidence tended to establish one circumstance in a chain which strongly indicated that the-judgment was collusive, fraudulent and void. The evidence was very material, for if the judgment was void the execution was also void and the plaintiff should recover. For this error I concur in the decision.

I am unable to concur in the language of the second paragraph of the syllabus or in some statements in the *333opinion. It is said that the interest of a wife in the lands of her husband “springs into existence by operation of law upon a concurrence of seizin and the marriage relation.” If this be true, this suit was long ago barred by the statute of limitations. Coverture is no disability in this state. A married woman may sue and be sued in the same manner as if she were unmarried. If the land was sold under a void judicial proceeding, and she had a present interest therein which was invaded, she could and should have proceeded to have the sale set aside within the limitation provided by law. If, however, as I think, her rights sprang into existence •on the death of her husband, then her action is not barred but is timely.

The wife’s right to prevent the fraudulent disposition of her husband’s land is based upon her legal right to look to it for her maintenance, which, as is shown lby the petition in the case of Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245, was pleaded in that case, and no other right appears to have been asserted nor any other question to have been presented for decision.

The statutory right of a wife to an estate in her kusband’s land is not consummated until his death. Until then she has no right of possession and she cannot sell it. It can be taken from her in an action to which she is not a party — that is, without due process of law. If she die before her husband no right or interest therein descends to her heirs. In all its uncertainty and contingency it. is entirely analogous to dower. As to devolving an estate it is analogous to heirship. *334wife until the death of her husband. A possibility of dower is no vested right in the estate of dower, or anything the law recognizes as property.” (Richards v. Bellingham Bay Land Co., 54 Fed. 209, 211, 4 C. C. A. 290.)

*333“Dower is not an estate in land, vested or otherwise. It is a right without value, unless by some modem methods a possibility may be valued. A possibility or contingency is not an estate. It may be affirmed generally, where a right is given by law, until that right becomes vested in some way in property the law may be changed or repealed, and the right taken away. . . . Dower does not become a vested right in the

*334A married woman who survives her husband either has or has not a vested property right, prior to his death, in the land owned by him at any time during the continuance of the marriage relation. If she has such vested property right at such time, coverture being no disability, she has an immediate cause of action when such right is invaded, and may bring her action at once to repel such invasion. Since she may bring her action at once, she must bring it within the time limit provided by statute or be forever barred from the remedy.

If the wife has no vested property right in her husband’s land prior to his death, she certainly is vested by the statute with such right, immediately upon his death, in all his lands which have not theretofore been alienated in some one of the manners specified in the statute; and if, by fraud or otherwise, a cloud has been cast upon hér title to her interest in such lands by an apparent, not real, alienage of the same before the death of the husband, she may bring an action at any time after his death, within the statutory limitation, to remove such cloud.