Loeb et al. v. Mathis. It will be seen, upon close examination, that the present question has not, in a single one of the cases relied on by my brethren, been decided. The N. A. & S. R. R. Co. v. Huff, is the only one of them in which the objection was held good after a verdict otherwise recognized as valid, and I have already distinguished that case from the present, as one in its nature in rem, operating upon the title to real estate. Ring v. McCoun, 3 Sandf. 524, was held to be of the same character. Gardner v. Ogden, 22 N. Y. 327, was a case where the decree sought would operate directly on the person of the defendant, compelling him to act, and therefore unlike the Huff case, where by its own force the decree would operate upon the title. It is by inference only, as it seems to me, that the cases referred to, with perhaps a single exception, can be made to support the motion in arrest. This inference is deduced from language employed by the judges, where, I think, words were not well chosen, or not used with exactly legal accuracy, as they would have been if the very question had been in hand. There is a well recognized distinction between jurisdiction over the subject of the action and jurisdiction over the particular cause. The latter may not exist, though the former does, in a given instance. In short, as has been already intimated, the law may require the particular cause to be commenced in a certain county or court, not because the courts elsewhere have no jurisdiction of the subject, but because the legislature is of opinion that it will be more convenient or less expensive to try it in the county or court chosen. Prigg v. Adams, 2 Salk. 674, is a case where the decision rested upon this distinction. There the judgment (for five shillings) of a court having general jurisdiction of the subject was held valid, the cause arising in Bristol, though the statute required all such causes arising in Bristol under forty shillings to be brought in an inferior court, declaring that the judgment of any other court should be void. The judgment was erroneous, of course, but it would have been void if the effect of the statute had Loeb et al. v. Mathis. been to deprive the superior court of its general jurisdiction of the subject. This distinction has never been questioned to my knowledge. I Smith Lead. Cas. 821. The words, "jurisdiction of the subject," are frequently found in the books, and are used in this general sense, meaning the general power of the court. I cannot bring myself to believe that the legislature, in adopting the same phrase, intended to express a different idea. Thus interpreted, the fifty-fourth section of the code is in harmony with the liberal and enlightened purpose of that act; otherwise, it is a return to the intense technicality of two centuries ago, abandoned in England, and condemned as mischievous everywhere else. I admit that it would logically follow, from the views already expressed, that the objection could not be raised by demurrer, and that this is not in harmony with Parker v. McAllister, 14 Ind. 12. It results, however, in no inconvenience or embarrassment that a motion or answer shall be required, the former when the matter appears on the face of the complaint, the latter when it does not. At common law, a demurrer would reach it, for then any objection apparent by the declaration could thus be raised, whereas now the statute authorizes only certain specified questions to be made in that way. The subject of the action may determine its proper venue without resulting in a denial of the general power of any court elsewhere to try the cause, if objections be not made, as I think has been already shown; and if this be true, it seems clearly to follow that no argument against the construction which I put upon the fifty-fourth section of the code can be founded upon a comparison of the language of that section with that which is employed in the twenty-eighth section.* Marshall M. Milford, F. Poole, F. McCabe, F. M. Butler, Monroe M. Milford, R. C. Gregory, F. H. Brown, F. E. McDonald, and E. M. McDonald, for appellants. T. F. Davidson, and F. Buchanan, for appellee. *Opinions filed January 2d, 1871; petition for a rehearing overruled February 2d, 1872. Hoskins v. Hutchings et al. HOSKINS v. HUTCHINGS ET AL. MORTGAGE.-Widow-Dower.-Where a husband mortgaged land (his wife not joining) on the 12th day of January, 1853, and in 1856 the mortgage was foreclosed, and the husband died in 1859, the wife had no interest in the land, dower having been abolished after the execution of the mortgage, with no saving clause for this class of cases. APPEAL from the Clark Circuit Court. DOWNEY, J.-Suit by the appellant against the appellees for partition of real estate. Judgment for the appellant for onethird, for her life, of the real estate, and for the appellees for the residue of the land, and partition made and approved accordingly. Each party moved for a new trial, which was denied, each excepted, and each has appealed and assigned errors. The facts are, that the appellant was the wife of Henry Hoskins, who was the owner in fee simple of the land in question. On the 12th day of January, 1853, he mortgaged the land to Hutchings, his wife not joining in the mortgage. In 1856, the mortgage was foreclosed, and at a sale of the land it was purchased by Hutchings, the mortgagee. Henry Hoskins died in 1859. The appellant insists that she is entitled to one-third in fee simple of the land; the appellees contend that she is not entitled to any of it, and the court awarded to her, as we have seen, one-third of it for her lifetime. In principle, we think this question is decided in Strong v. Clem, 12 Ind. 37, and the cases following it. It is true that in those cases the fee simple had been conveyed by the husband, when in this there was only a mortgage executed by him on the land. But when this mortgage was executed, it gave the creditor a valid lien on the land, subject only to the contingent right of the wife to dower in the same, in the event that she should survive her husband. We cannot see how the legislature could increase the interest of the wife, and in the same proportion diminish that 1 The Jeffersonville, Madison, and Indianapolis Railroad Company v. Cox. of the mortgagee, without incurring the charge of having impaired the obligation of the contract. The creditor has here a specific lien upon the mortgaged premises, which cannot be taken away from him, without an evident infraction of the constitution of the United States, and a violation of a plain principle of justice and right. Const. U. S., art. 1, sec. 10. Coming to the other branch of the question, we must follow the cases which have been decided by this court, which hold that the inchoate dower estate of the wife being abolished, she has, in such a case, no interest in the land. It is unfortunate that the legislature did not, in the section abolishing tenancies in dower and by courtesy, except from the operation of the act inchoate rights. While, in this case, the mortgagee must be allowed to hold the interest which was mortgaged to him, undiminished by any subsequent legislation, there would seem to be no justice in such legislation as gives him the land discharged from the dower estate altogether. But we feel compelled to follow the cases to which we have referred in this respect, as well as in the other, and hold that the widow has no interest whatever in the real estate in question. Judgment reversed and the cause remanded, with instructions to dismiss the complaint, costs to appellant, against Josephine R. Hoskins.* F. H. Stotsenburg and T. M. Brown, for appellant. *Petition for a rehearing overruled. 37 325 140 545 THE JEFFERSONVILLE, MADISON, AND INDIANAPOLIS RAIL- PLEADING.-Demurrer.-Where a complaint contains one good paragraph, a PRACTICE.-Instructions.-Exceptions.-Where an instruction asked by a party, is in writing, signed by the party or his attorney, it thereby becomes part of the record. An exception may be taken to the giving of such instruction or 143 366 Hoskins v. Hutchings et al. HOSKINS V. HUTCHINGS ET AL. MORTGAGE.-Widow-Dower.-Where a husband mortgaged land (his w joining) on the 12th day of January, 1853, and in 1856 the mortgag foreclosed, and the husband died in 1859, the wife had no interest in the dower having been abolished after the execution of the mortgage, wi saving clause for this class of cases. APPEAL from the Clark Circuit Court. DOWNEY, J.-Suit by the appellant against the appellee partition of real estate. Judgment for the appellant for third, for her life, of the real estate, and for the appellees the residue of the land, and partition made and approved cordingly. Each party moved for a new trial, which denied, each excepted, and each has appealed and assig errors. The facts are, that the appellant was the wife of He Hoskins, who was the owner in fee simple of the land in q tion. On the 12th day of January, 1853, he mortgaged land to Hutchings, his wife not joining in the mortga In 1856, the mortgage was foreclosed, and at a sale of land it was purchased by Hutchings, the mortgagee. He Hoskins died in 1859. The appellant insists that she is entitled to one-third in simple of the land; the appellees contend that she is not e titled to any of it, and the court awarded to her, as we ha seen, one-third of it for her lifetime. th In principle, we think this question is decided in Stro v. Clem, 12 Ind. 37, and the cases following it. It is truc in those cases the fee simple had been conveyed by the band, when in this there was only a mortgage executed him on the land. But when this mortgage was execut gave the creditor a valid lien land, subje to the contingent right of to dowe same, in the event that she We cannot see how the legisl est of the wife, and in the rvive dinc |
Get this book in print