CURTESY — STATUTES.

[Hamilton Circuit Court

1900.]

Smith, Swing and Giffen, JJ.

#### Eva D. Cameron et al. v. Goebel & Bettinger et al.

1. Estate by Curtesy — Restrictions—Retroactive Daws.

Where by the law in force at the death of the wife, the husband acquired an estate as'tenant by curtesy, but without any right to convey or encumber the same during the life of any of the children, and with an express provision of the statute in force that his interest therein should not be taken by any process of law for the payment of his debts, the legislature cannot, without infringing upon the vested rights of children, remove such restrictions and. authorize the husband to convey or encumber his interest or allow it to be sold for his debts during the life of any of the children. The act of April 14, 1884, amending sec. 3108 Rev. Stat, by new secs. 3108 and 3109 Rev. Stat., repealing the limitation imposed upon a tenant by curtesy is. therefore, retroactive and invalid as to vested rights of children.

2. Provisions Referred to May be Waived.

The provisions of the statutes above referred to, preventing a sale or encumbrance by the husband or preventing the property being taken for the debts of the husband, during the life of any of the children, being intended for the protection of the children or remaindermen, may be waived.

Appeal.

Smith, J.

Urhis is an action by the plaintiffs seeking to sell the interest of defendant. Simpkinson, in a certain tract of real estate to pay a judgment rendered against him¿ which judgment is now owned by them, and to have a claim asserted.by defendants, Goebel k& Bettinger, as a lien on the same land prior to theirs held to be invalid as against them.

It is admitted that the real estate in question was owned in fee simple, at the time of her death, by Martha Simpkinson, who died intestate December 29,1869, leaving surviving her the defendant, Henry H. Simpkinson, and three children, her only children and heirs at law— /.the two plaintiffs and their brother, John H. SimpkinsonJ Whethei John H. Simpkinson is now living does not appear, but it is admitted that before the commencement of this suit he had sold and convened all of his interest in this real estate to Mrs. Ford, his sisterjand that the two plaintiffs are the owners of the land in fee simple, subject only to the interest of their father (or of those claiming under him) therein, as the surviving husband of Mrs. Martha Simpkinson, their motheij]

John Kelly, the grandfather of the plaintiffs, held a claim against Henry H. Simpkinson, on which he brought a suit in Miami county ■common pleas court, which he assigned to his two grand-daughters, the plaintiffs, while the suit was pending, and a judgment was recovered in said suit against defendant, Simpkinson, for the sum of $5,580.58, on which an execution was issued to the sheriff of Hamilton county, Ohio and levied on the interest of Simpkinson in the land described in the petition in this case. Prior to this, however, the defendants, Goebel & Bettinger, had, by confession, recovered a judgment against said Henry H. Simpkinson, in Miami county common pleas court, for $1,757.35 and costs, and an execution issued thereon had also been levied by the sheriff of Hamilton county on his interest in said land.

*119¿jThe claim of the plaintiffs is that they are entitled to have the interest of their father in this land sold for the payment of their said judgment] and .that under the law the defendants, Goebel & Bettinger, have no claim or lien thereon, and that it be so held and adjudged by the court, and that the said interest of Henry H. Simpkinson in this land be .sold under the order of the court, and the proceeds be applied to the payment of their claim, and for such other relief as in equity they are «entitled to.

The claim of Goebel & Bettinger as set up in their answer is that the execution issued on their said judgment was levied on the interest of H. H. Simpkinson, in this land on December 30, 1897, and that the execution in the Kelly case was not levied until April, 1898, and that by virtue of the levy of their execution they have a good lien on the interest ■of Simpkinson therein, and one prior to that of the plaintiffs, and they, by cross-petition, ask for the sale thereof, and that this claim be first paid from the proceeds.

The court of common pleas by its decree ordered the interest of -Simpkinson in the land to be sold, and that from the proceeds of sale, the costs be first paid, and that the residue be applied, first, to the payment of the claim of Goebel & Bettinger, and the balance to the claim of the plaintiffs. From this decree the plaintiffs appealed to this court. In this court Simpkinson filed an answer consenting to the sale of this interest in the property to pay the claim of Goebel & Bettinger.

On this state of fact what are the rights of these several parties in this case ?

Mrs. Simpkinson, the wife of Henry H. Simpkinson, and the mother ■of the two plaintiffs, and their brother^ jraving died intestate December 29, 1869, the real estate in question descended to her said three children subject to the interest of Henry H. Simpkinson therein, as by the provisions of either Sec. 1 or Sec. 2 of the statute of deseents^passed March 4, 1865 (S. & S., 304), amending Sec. 1 and 3 of the act of March 14, 3853 (S. & C., 501), and by virtue of the provisions of Sec. 17 of the last ■cited act which provided that “nothing in this act should be so construed, as to affect the right which any person may have to any estate by the curtesy or in dower in any estate of any deceased persons. And surviving husbands, whether there has been issue born during the coverture or not, should be entitled to the estates of their deceased wives by the curtesy.”

These provisions of the statute being in force at the time of the death •of Mrs. Simpkinson, if there were then no other provisions of law modifying or changing the same, it seems clear that the surviving husband ■would have taken a life estate in this land, and would have had all the rights of a life tenant therein, including the right absolutely to convey the same to a third person, or to mortgage or encumber it for his debts, or to confess a judgment against himself, and that on proceedings to foreclose the mortgage, or enforce the judgment by execution or otherwise, his life estate therein might be sold under the order of the court, and the purchaser obtain a good title thereto.

But these were not the only statutes to be taken into consideration. •On May 1, 1866, an act was passed and took effect (S. & S. 389), making real estate owned by a married woman, and acquired by her in any one ■of the ways therein specified, her separate property, and giving her certain rights therein, but providing that “this act shall not affect the estate by the curtesy of any husband in the real property of his wife after' *120her decease j^but during the life of the wife of any heir of her body such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or encumbered by him, unless she shall join therein with him in the manner prescribed by law in regard to her own estate.’’)

This section was slightly amended March 28, 1866 (3. & S., 391)) but in no wise affecting this provision, and in the revision of the statutes in 1880 the law in question was re-enacted as Sec. 3108, Rev. Stat. If, as between these parties, these laws are still in force, it would seem to be clear that during the lifetime of the plaintiffs, two of the heirs of the body of Mrs. Simpkinson, this interest of the husband as life-tenant in this estate could not be taken by any process of law for the payment of his debts, "at least without, the consent of the three children of Mrs. Simpkinson, of, it may be, the consent of those living^who now have the estate in remainder, that is, of Mrs. Cameron and Mrs. Ford.

Bht, as we understand it, the claim asserted on behalf of the defendants, Goebel & Bettinger, is this: ¿That on April 14, 1884, this sec. 3108 was so amended by new secs. 3108 and 3108, Rev. Stat., as to repeal the limitation before that time imposed upon himjjlthat during -the life of any heir of the body of the wife his interest in her estate as tenant by this curtesy should not be taken by any process of law for the payment of his debts, or be conveyed or encumbered bjr him unless the wife should have joined therein with him in' the manner pressribed by law in regard to her own estate (81 O. L., 209),]_an'd that this legislation had the effect-'immediately to confer upon Mr. Simpkinson the same rights as other life tenants have in real estatejand to mortgage or convey the same, and to encumber it by judgment liens, and from that time forward it was liable to sale on execution or otherwise, even during the lifetime of aniy heir of the body of Mrs. Simpkinson ; and if the statute in question was a valid one as to these parties, as applied to their respective interests .and estate in this land, the contention would seem to be right unless the law as affecting them has been changed by subsequent legislation..,,-

There have been substantial changes in the statutes on this subject since that of April 14,1884. At the very next session of the legislature sec. 8108, Rev. Stat., as amended April 14, 1884, was repealed, and re-enacted with the same limitation upon the rights and powers of a tenant by the curtesy as had existed when the husband had acquired his interest at the death of his wife under the law of 1861, and as amended in 1866, and by sec. 3108, Rev. Stat., as brought into the revision of 1880. This act is found in 82 O. L., 131, and continued in force until March 19, 1887, when an act was passed (84 O. L., 136), sec. 4194-1, Rev. Stat., abolishing the estate by the curtesy, but saving vested rights and in lieu thereof giving to a widower, as dower, one-third of his wifes’ land for his life.

But manifestly this last statute does not affect the rights of the parties in this case for the reason that it does not purport to do so, as it saves all vested rights, and for the additional reason that the legislature would not have the right to reduce a vested life estate of a tenant by the curtesy in the whole land to a dower interest of one-third thereof. ¿And for the last reason stated, we are of the opinion that if the statute of April 14, 1884, was a valid statute as to these parties, and gave to Simpkinson, the tenant by curtesy, the right to convey, mortgage and encumber this interest in this real estate by repealing the restrictions and limitations on his right to do so imposed by the statute in force *121when he acquired his title thereto, that the legislature had not the right, by the statutes of 1885 to reimpose such limitations upon him, and upon the right to use his said estate, j, '

1 On this point then the question then seems to be this : The husband and the children, the heirs at law of Mrs. Simpkinson, having aquired their several interests in this land on the death of the wife in 1869, his interest under the law then in 'force being that of a tenant by the curtesy, having an estate for his life in said lands, but without any right to convey or encumber them during the life of any of her surviving children, and with an express provision of a statute in force that his interest therein should not be taken by any process of law lor the payment of his debts, could the legislature, without i'nfiinging upon the vested rights of the children, remove all those restrictions and authorize him thereby to convey or encumber his interests therein, and allow it to be sold for his debts during the lifetime of any of those childrenjij

The question is one not ffipe from doubt. Indeed we are referred by counsel for the defendants to the decision of this court directly holding, in a somewhat similar case, that this statute of 1884 was not open to the objection named. It is Hulick v. Higdon, 1 Circ. Dec., 184. It there appears that the court deciding it was composed ol Judges Cox, Smith and Swing. This is an error as Judge Bradbury took the place of Judge Swing, who had been of counsel in the case. Personally I have but an indistinct recollection of the case or of the arguments of counsel, but on reconsideration of the question{I am of the opinion that that case was not correctly decided; that the rights of the parties were fixed by the laws in force when their interests were acquired, and were, therefore, vested rights, and could not be interferred with by the legislature. There can be no question, I think, but that on the death of the mother the three children took the whole title to the estate which had been held by her, subject only to the right given by the existing law to their father^ and that certainly was not an absolute life estate therein, but, on the contrary, by the statutes referred to, was shorn of many of the attributes and privileges of a tenant of the curtesy as it existed at common law, on the death of the wife, and as it existed in this state by statute prior to the passage of the law of 1861. At the death of the wife in 1869, the husband and the children together owned the whole estate —the husband an estate for his life therein, as fixed and limited by the statute, and the children the residue of the estate, subject only to his ‘rights.

On what principle, then, the legislature could afterwards provide that his rights therein could be greatly extended, and the interest of the children correspondingly lessened, and this be effective as against them, I can not understand, in view of the provisions of tsec. 28, art. 2, of the constitution of the state, which provides that “the general assembly shall have no power to pass retroactive laws.” And as held by Judge Brinkerhoff in deciding Raridan v. Burnett 15 Ohio St., 207, “ the words ‘ retrospective ’ and ‘ retroactive ’ as applied to law, seem to be synonymous,” and he quotes approvingly Judge Story’s definition of a retrospective law: ¿“Upon principle, every statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty or attaches a new disability in respect to transactions or considerations already passed must be deemed retrospective,” and therefore, under the clear doctrine of the law that statutes *122affecting substantial interests and rights of property have a prospective operation only, unless the contrary intention is already expressed. Kelley v. Kelso & Loomis, 5 Ohio St., 199.

Such should be the holding as to this statute of 1884, for it certainly seems to come within the meaning ol retroactive law, as defined by Judge Story. The statute in iorce at the time he acquired his title, simply gave to the husband during the time that any one of the heirs of the body of the wife was living the right to use and occupy the estate during his life (by himself or his agent we suppose), and expressly deprived him of any right to convey or encumber it during the life of the wife, unless she joined in the deed, and expressly exempted his interest therein from sale on execution or otherwise for his debts, either before or after the death ot the wife, while any of said heirs were living unless the wife had so joined in the mortgage or other encumbrance. ¿It is expressly held in Robert v. Sliffe, 41 Ohio St., 225, that the liv ng children after the death of the wife, have the right to prevent the enforcement of a mortgage made by the father after the death of the wife, which shows, we think, that they had substantial rights which would be protected by the courts, and which were so vested that they could not be divested by the legislature J

*ilS*these «views be correct, and the claim of the defendants, Goebel & Bettinger, could not be asserted and enforced in an action brought by them directly to do so, against the wishes of the children, can it be done where, as in this case, an action is brought by the two children now owning the remainder, and where they seek the sale on a debt of the father now owned by them_?J And under the circumstances of this case, have the plaintiffs, the sole owners of the remainder, the right to have the father’s interest sold to pay the judgment lien thereon ? As to the last question, we have had doubt whether it can be done without the consent of John H. Simpkinson, one of the children of Mrs. Simpkinson, if he is now living. But as this provision as to sale or encumbrance by the husband, or preventing the property being taken for the debts of the husband, during the life of any child was probably for the protection of the remainder of the estate, it may be that the consent of one who- has parted with his interest in the estate is not essential, but we think it would be the safer plan to have such consent. ¡If given, we see no reason why (as this provision of the law is one for the protection of the children or rem inder man) they could not waive it.) Nor do we see any good reason for holding that thev may, and do, waive it as to their own claim, and ask for a sale of their father’s interest in the land to pay it; that this also would operate as a waiver of their right to object to the sale thereof to pay the claim of Gobel *&*Bettinger.

But it is clear, we think, that the court ought not to take any action that would be prejudicial to the rights of the latter. Their lien, by the levy of their execution before the levy of that of the plaintiffs, in some sense gave them a lien on the freehold estate of Simpkinson. It attached at the date of the levy, and gave them the right to sell the life estate if he survived his children. This is a substantial right and should not be taken away. The only way in which the rights of all the parties can be protected, as it seems to us, would be to have the interest of Mr. Simpkinson sold on the claim of the plaintiffs, and the proceeds of the sale, less the costs of the case, placed in the hands of a trustee for investment during the life time of Simpkinson, the net pro-, *123ceeds of the income thereof to be paid to the plaintiffs during the lifetime of the father and of the plaintiffs, or either of them, and if the father should survive the children then the defendants, Goebel '& BettingerT would be entitled to the amount of the purchase money, less the costs as aforesaid.

*J. J. Glidden*and *C. & M. Swing,*for plaintiffs.

*Jacob Skroder,*for defendants.