The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-01-24
AGAINST THE PLAINTIFF.
Judge Howe Gives an Adverse Ruling in One
Of the Little Cases.

In the suit of William c. Smock, guardian of
Cornelia E. Little, against Christian Spiegel and
others, Judge Howe onyesterday decided against
the plaintiff a demurrer, and an appeal will be
taken. About So, 900 worth of property is in
volved in the suit, and five similar ones are now
pending out of the thirty originally filed. Judge
Howes construction of the law on the present is
sue is of general interest 1t is as follows:
It is claimed by plaintiff that tho "act to en-
able persons whose wives are insane to convey
real estate" approved March 2, 1867 Il Cav. &
H., 257l, is unconstitutional. The only ground
upon which such claim can be based is that the
wlte's inehoate right is a vested right. Whatever
attributes of property may be conceded to be-
long to it, it is well settled that it is not vested
right 1T is" says Mr.. Bishop, "a mere posi-
bihty. Not only is it no essate, but the right
itself is mere contingent, possible thing" Il
Bishop Mar. WON, sec. 348 And while it re-
full right to modify or to abolish it. Cooley
Const Linn, Sd ed, p. 361.
1t is also claimed that the proceedings in the
Circuit Court did not bind the insane wife be-
cause she had no notice of them. Tho statute
does not require notice. But it is claimed that
notice was necessary whether required
by the statute or not This would
be so if any vested right of the wife had
Indication to any vested right of hers, because
she did not have any vested right. 1t was in
choate, and, if the Legislature could abolish it
altogether, it could provide for its extinguish-
ment without notice. as in cases where such
right is extingished by the exercise of the right
OF eminent domain. Mills Eminent Domain
III: i Washburn Real Prop, 4 ed. p. 300 q
Finally, it is claimed that in the proceeding in
the Circuit Court the land was not sufficiently
described. 1t is to be observed that the power
to sell is conferred by the Legislature directly
upon the husband. He does not get authority
from the Circuit Court. That court has no dis
erection to give or withhold assent to the proposed
sale of the husbands lands. 1t has nothing to
do but to ascertain the fact of the wifes insanity
and that it is probably permanent, and to fix the
penalty of the bond required. If any descrip-
ton of the land is required at all, it is
only such as will enable the wife to identify
the land sold in case she RECEIVERS and
desires to enforce the bond The descrip-
ton in question here is, l think, sufficient
for that purpose, even conceding that it might
not be sufficient in a complaint in ejectment
Clearly, if the insane wife in this case had re-
covered from her insanity, and were now prose-
cutting an action on the bond she could introduce
parol evidence toidentify the land in controversy
as the identical land intended to be covered by
the description in question, and the husband, or
his representatives, would not be heard to say
that no recovery could be had because in the
proceedings in the Circuit Court the land was
not more particularly described For these rea-
sons l think that the demurrer to the third para
graph of answer should be sustained.