Summary
determining that no right of dower exists prior to marriage
Summary of this case from King v. KingOpinion
No. 68-289
Decided April 30, 1969.
Dower — Section 2103.02, Revised Code — Conveyance to children of former marriage — Inadequate consideration — Without disclosure to intended wife — Not fraud on dower right incident to later marriage.
A conveyance of realty to children of a former marriage, without consideration other than love and affection, by a man engaged to be married, without disclosure of the conveyance to his intended wife whom he later marries, does not defraud her of her right of dower, provided for in Section 2103.02, Revised Code. ( Ward v. Ward, 63 Ohio St. 125, overruled.)
APPEAL from the Court of Appeals for Cuyahoga County.
Ruth Perlberg, appellee herein, became engaged to marry Isadore Perlberg, hereinafter referred to as the deceased, in April 1955. During the engagement, the deceased showed appellee certain business property which he owned in fee, and she turned over to the deceased $5,000 which he used to improve the property. On December 7, 1956, the deceased conveyed the property to his children, hereinafter referred to as appellants, for a stated consideration of $10, and the deed was filed in the office of the Cuyahoga County Recorder on the same day. Appellee and the deceased were married on December 8, 1956.
On July 1, 1958, the deceased executed a cognovit note in the amount of $5,000 payable to appellee 30 days after date. The note was delivered to his attorney to hold for her until after his death.
Appellee's husband died on November 2, 1964. Upon learning that his will made no provision for her, she elected to take against the will, as provided by law. She presented her claim on the note to his executor, but there were no funds in the estate to pay her claim. And when she learned that the deceased's total probate estate was less than $6,000, and included no realty, she instituted the instant action in the Court of Common Pleas against the appellants. The petition alleges a conspiracy by the appellants to defraud her of her right of dower in real property which had been owned by the deceased during his lifetime. The prayer of the petition is to set aside the conveyance to appellants, for a lien in the amount of $5,000 against the property and for other equitable relief.
The Court of Common Pleas rendered judgment for the appellants. It found that there was no evidence to show that appellants conspired to defraud appellee of her dower rights; that at the time of the conveyance to the adult children the deceased was free to convey it to anyone; and that appellee had no rights in the property. The court distinguished Ward v. Ward, 63 Ohio St. 125, on the ground that the deed in this case had been filed for record before the marriage ceremony took place, whereas the deeds in Ward were not filed until after the death of the husband.
Upon appeal on questions of law and fact, the Court of Appeals, considering the record as made in the Court of Common Pleas, held that the case of Ward v. Ward, supra, was controlling. Judgment was rendered for appellee, granting her a one-third interest in the property which had been conveyed to appellants and requiring appellants to account to appellee for all income from the property received after November 2, 1964. The Court of Appeals found that appellee was not entitled to a lien in the sum of $5,000 upon the real estate.
The cause is now before this court pursuant to the allowance of a motion and a cross-motion to certify the record.
Mr. Robert Merkle and Mr. Robert J. Marquard, for appellee and cross-appellant.
Mr. Edward R. Reichek and Mr. Max B. Katz, for appellants and cross-appellees.
The issue before us is whether a conveyance of realty to children of a former marriage, without consideration other than love and affection, by a man engaged to be married and without disclosure of the conveyance to his intended wife whom he later marries, defrauds her of her right of dower, as provided for in Section 2103.02, Revised Code, and entitles her to a recovery of dower under the provisions of Section 2103.06, Revised Code.
We are reviewing a decision of the Court of Appeals, holding that the case of Ward v. Ward, supra ( 63 Ohio St. 125), when applied to the facts in this case, requires a finding that appellee was defrauded of her right of dower. Contrary to appellee's contention, nothing in the journal entry of the Court of Appeals suggests any findings of fact which differed from those made by the Court of Common Pleas. In its opinion, the Court of Common Pleas distinguished the Ward case on the ground that "* * * the deed in this particular case was recorded, and the purpose of recording an instrument is to give notice, and * * * it is notice to the world, and this would include notice to the prospective bride."
We agree with the trial judge that the filing of the deed, even on the day before marriage, constitutes legal notice of the conveyance. But we do not believe that Ward v. Ward, supra, provides a reasonable rule for our time; therefore, we are not content merely to distinguish that case on the notice point.
In both Ward and the instant case, the deeds involved were voluntarily made, in contemplation of marriage, to children of a prior marriage, without consideration other than love and affection and without the knowledge of the betrothed.
In Ward, Judge Minshall stated, at pages 126 and 127:
"* * * It can make no difference in principle whether actual fraud was intended or not, their [the deeds] execution and delivery before marriage without her knowledge or means of knowledge, operated as a legal fraud on what would be her rights in case of marriage. * * *"
The conclusion reached in Ward is founded upon the theory of constructive fraud, the basis of which is that the relation existing between persons engaged to be married is of such a confidential nature that a conveyance of property owned by a man prior to marriage without the knowledge of the intended wife is fraudulent, at least to the extent of the interest she would acquire after marriage.
Constructive fraud does not require proof of fraudulent intent; the law indulges in an assumption of fraud for the protection of valuable social interests based upon an enforced concept of confidence both public and private. See 24 Ohio Jurisprudence 2d 623, Section 5.
An examination of the Ohio statutes fails to reveal any restraint on alienation of property by a person engaged to be married. There is nothing inherently unlawful or sinister in transferring real property to one's children. On the contrary, such an act may be said to be of high moral and social merit. An engagement to marry cannot operate to impress a duty of disclosure to a prospective spouse as a condition to the lawful transfer of real property.
It is obvious that those who are engaged to be married are in a special relationship; however we are unable to find anything peculiar about such relationship which gives rise to a peremptory inference, as a matter of law, that nondisclosure of a transfer of real property prior to marriage is a constructive fraud upon the right of dower incident to a later marriage.
No right of dower, provided for in Section 2103.02, Revised Code, exists prior to marriage. If evidence is adduced in the requisite quantum that a betrothed woman has been the victim of actual fraud, her cause of action to set aside such a fraudulent conveyance will lie. The record contains no such evidence. Furthermore, the record contains no evidence of actual fraud which would require a reversal of the Court of Appeals' finding that appellee was not entitled to a lien in the sum of $5,000.
For the foregoing reasons, the case of Ward v. Ward, 63 Ohio St. 125, is overruled. In view of our decision herein, we deem it unnecessary to pass upon other questions raised in appellee's cross-appeal.
The judgment of the Court of Appeals is, therefore, reversed, and this court, proceeding to render the judgment the Court of Appeals should have rendered, grants judgment for the appellants.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER and HERBERT, JJ., concur.