Dure v. Sharpe

Citations

• 12 Del. Ch. 1
• 114 A. 207
• 1910 Del. Ch. LEXIS 25

Syllabus

<p>It is the duty of the court in cases of judicial sales to protect the purchasers against defective titles.</p> <p>A statutory dower right, though it may never accrue actually, is, even during the lifetime of the husband, a substantial right, possessing attributes of property, to be estimated and valued as such, and is held by the wife entirely independent of her husband.</p> <p>The dower right does not attach to any greater right than that held by the husband, and therefore the wife’s right to property held by him as a tenant in common is subject to the right of the co-owners to have the property partitioned in severalty, in which case the dower right attaches to the portion allotted in severalty to the husband.</p> <p>An actual partition in severalty of property held by tenants in common is binding on the wife of one of the tenants, though she is not a party .to the proceeding, and her dower attaches to the land allotted to her husband in severalty, and not to his undivided interest in the whole of the property.</p> <p>In the absence of any statutory provision, a wife of a tenant in common should be held a necessary party to proceedings for the sale of land for partition, since she cannot have her dower interest secured in any way against the proceeds of the sale, and therefore should have an opportunity to urge that the partition be made in severalty without sale.</p> <p>The court should not allow the husband or any grantee from him after his marriage to become a petitioner for partition, and should refuse to allow the land to be sold, where it appears that a tenant in common was the petitioner by collusion with the husband, or by his fraudulent procurement, to deprive his wife of her right in the land.</p> <p>Rev. Code 1852, amended to 1893, p. 661, §22, making a sale of lands pursuant to section 14 of that chapter effective against an interest in dower, if the person entitled to such interest was a party to the proceeding, refers only to persons entiteld to a