1 Freeman, Judgm. 4th ed. § 256. A verbal promise to indemnify against loss in becoming surety for a third person is a special promise to answer for the debt, default, or mis-pacity of principals or sureties, may be othercarriage of another person, and no action can be maintained on such promise. Easter v. White, 12 Ohio St. 219; Kingsley v. Balcome, 4 Barb. 131; Nugent v. Wolf, 111 Pa. 471: Brown v. Adams, 1 Stew. (Ala.) 51, 18 Am. Dec. 36. At the time of the payment of this liability |tions existing between joint, or joint and by Rose and Wollenberg, it was in the form of several, promisors or obligors upon a note or a judgment against both. Neither party could bond, or other instrument of writing, can be dispute their liability, the judgment being con- shown by parol, whether principals or sureclusive as to both. ties. The writing is paramount, and fixes liability, as it pertains to the payee or obligee; but, as between the makers or obligors, their correlative undertakings, whether in the cawise established. The principal, who has obtained the benefit of the contract, or suffered the forfeiture of his bond or obligation, is always bound to indemnify his surety who has sustained loss upon his account, and he cannot interpose the statute of frauds to prevent it. But when we go a step further, to the proposition which involves the undertaking of one surety to indemnify another, in whole or in part, against liability upon their principal's obligation, or, as is alleged in the case at bar, an agreement between themselves fixing upon a different ratio of liability than that which the law raises or implies, we find much contrariety of opinion and authority, as respects the enforcement of such undertaking or agreement where it rests in parol. If the surety voluntarily pays, he cannot recover from cosurety. Baylies, Sureties & Guarantors, p. 327, § 7; Hichborn v. Fletcher, 66 Me. 209, 22 Am. Rep. 562; Bancroft v. Abbott, 3 Allen, 524. Wolverton, J., delivered the opinion of the court: The question presented by this record is whether the alleged agreement between the plaintiff and defendant "that the liability of plaintiff should be a one-third proportion, and that of the defendant should be a twothirds proportion, of any liability that might occur under said bond to said sureties," not having been entered into in writing, is within the statute of frauds and perjuries, and therefore void; and, if not, another question arises, and that is whether the evidence presents a prima facie case, sufficient to go to the jury. It is settled by Durbin v. Kuney, 19 Or. 71, that as between cosureties, where one of their number has paid more than his proportion of the common liability, no special agreement having been entered into between themselves, the law raises an obligation upon the part of the cosureties to repay him the excess which he has been compelled to pay, upon the principle that, where there is a common liability, equality of burden is equity. Formerly equity alone entertained jurisdiction to compel contribution, but latterly courts of law, having borrowed the jurisdiction, are competent, in most cases, to administer relief. It is said in the case cited "that the doctrine of contribution does not depend upon contract, but is bottomed and founded upon principles of natural justice. The contract on which they are codebtors, or sureties, only expresses the relation between them and their creditor, and is entirely distinct from the right of contribution, which exists between themselves." While the law, upon principles of natural justice, raises the obligation of equitable contribution among cosureties, it by no means follows that they are inhibited from fixing or determining their relative liabilities by express contract or agreement among themselves. Indeed, the right to enter into any agreement in respect of such liability as their discretion or judgment may dictate is not questioned. The important question is whether such contracts or agree ments are within the statute of frauds, requiring all contracts for the debt, default, or miscarriage of another to be contained in some note or memorandum in writing expressing the consideration, signed by the party to be charged. It is well settled that the true rela The earliest case to which our attention has been called is that of Thomas v. Cook, 8 Barn. & C. 728. It there appeared that one person requested another to become surety with him for a third party, under promise of indemnity against payment. In deciding it, Bayley, J., says: "Here the bond was given to Morris as the creditor, but the promise in question was not made to him. A promise to him would have been to answer for the default of the debtor. But it being necessary for W. Cook, since deceased, to find sureties, the defendant applied to the plaintiff to join him in the bond and bill of exchange, and undertook to save him harmless. A promise to indemnify does not, as it appears to me, fall within either the words or the policy of the statute of frauds." This was in 1828. In 1839 Green v. Creswell, 10 Ad. & El. 453, was decided by the same court, which may be taken to have overruled Thomas v. Cook. At least, the reasoning of that case was severely criticised. The case was this: The plaintiff, at the request of defendant, and under his promise to indemnify and save him harmless, became surety for one Hadley upon a bail bond in a civil action. The defendant did not join as cosurety. The undertaking was held to be within the statule. The court distinguishes Thomas v. Cook by reason of the fact that both the plaintiff and defendant therein joined as cosureties. Subsequent authorities have assigned as a reason for the distinction that, where the defendant is cosurety, he is, as such, and without any special promise, liable already to contribute, and that his special promise to pay the whole may be regarded as but a matter of regulation of contribution between the two sureties In Browne, Stat. Fr. 4th ed. § 161a, it is argued that the reason is not well assigned, because-First, that, though called regulation of a contribution, it is really a promise to pay what he was not otherwise liable to pay for a third party; and, secondly, that he was never liable to contribute at all except by force of the relation of cosuretyship into which he entered, and owed no antecedent debt or duty of his own." These cases gave rise to the subsequent divergence of opinion on the subject treated therein, and the decisions of courts of different jurisdictions are to be largely distinguished, in that they have followed the one or the other of these early authorities. Reader v. Kingham, 13 C. B. N. S. 344, a later English case, decided in 1862, and arising out of a similar state of facts, although not overruling, is in direct conflict with, Green v. Cresswell. In Cripps v. Hartnall, 4 Best & S. 414, the court would not say that it could lend its support to Green v. Cresswell. But in a much later case, decided in 1874 (Wildes v. Dudlow, L. R. 19 Eq. 198), Green v. Cresswell was expressly overruled, and Thomas v. Cook approved and followed. In that case the son, at the request of his father, became surety for a thirty party, the father not signing as a co surety; and it was held to be an original con tract for indemnity, and within the statute of frauds. By a very recent case (Guild v. Conrad [1894] 63 L. J. Q. B. 721), decided in 1894, it was held that Green v. Cresswell was no longer binding, but that Thomas v. Cook was good law. So that it may be said that in England the doctrine has been finally settled in harmony with the latter case. a surety who became such (upon a tax collector's bond) at the request of his cosurety, and under promise of indemnity, could not be required to contribute, the cosurety having paid the whole loss. Denio, J., says: "The cases where the person making the promise was himself bound for the default of the third person are uniform in holding the contract to be unaffected by the statute.' Thus distinguishing Green v. Cresswell and Kingsley v. Balcome, and following Thomas v. Cook, the court concludes: "I am of opinion that where a person is about to become bound by writing to answer for the default of a third party, and he procures another to be bound with him in the same obligation by promising to indemnify him, that this is an original promise, and not within this branch of the statute of frauds." The same result was reached in a Massachusetts case (Blake v. Cole, 22 Pick. 97), based upon a similar state of facts. In a later case from the same state (Aldrich v. Ames, 9 Gray. 77), in which the facts are not stated, except that the promise was made for a valuable consideration, Shaw, Ch. J., says: "The theory of the statute of frauds is this, that when a third party promises the creditor to pay him a debt due to him from a person named, the effect of such a promise is to become a surety or guarantor only, and shall be manifested by written evidence. The promise in such case is to the creditor, not to the debtor. For instance, if A, a debtor, owes a debt to B, and C promises B, the creditor, to pay it, that is a promise to the creditor to pay the debt of A. But in the same case should C, on good consideration, promise A, the debtor, to pay the debt of B, and indemnify A from the payment, although one of the results is to pay the debt to B, yet it is not a promise to the creditor to pay the debt of another, but a promise to the debtor to pay his debt. This rule appears to us to be well settled as the true construction of the statute." These earlier cases are sufficient to illustrate the distinguishing features between the prevailing antagonistic opinions in this The country. The authorities among the states of this country are much divided upon the subject. Among the earlier cases to be found is Chapin v. Merrill, 4 Wend. 657, decided in 1830. The facts stated are that plaintiff, at the request and upon the solicitation of the defendant, and under a promise of indemnity, entered into an undertaking, under seal, with one Asa Ransom, by which they covenanted with a mercantile firm that if they would supply one Asa Ransom, Jr., with goods, they (the cosureties) would pay such an amount unpaid by Ransom, Jr., not exceeding $2,000, as should be due the firm. The defendant had no interest in the goods. Marcy, J., in deciding the case, says: The contract on which this action is brought is not, in my opinion, within the statute of frauds. The action is brought on the parol undertaking of the defendant to save the plaintiff harmless. promise in this case was original, and not a collateral undertaking, but had it a sufficient consideration? It is not disclosed that the defendant received any benefit from what was done by the plaintiff; nor is it necessary, as I conceive, that he should, to make him liable. In Tomlinson v. Gill, 1 Ambl. 330, and Read v. Nash, 1 Wils. 305, it does not appear that the defendant did or could derive any benefit from their undertakings, yet they were held liable on them. The consideration was the harm to the plaintiffs. In this case the consideration was the assumption of the plaintiff of a responsibility on which he was obliged to pay about $600. This is an abundant consideration for the undertaking on which this action is brought." This case was subsequently overruled by the supreme court of New York. (Kingsley v. Balcome, 4 Barb. 131), which latter was a case wherein plaintiff became bail upon arrest, at the request of defendant, who promised to indemnify and save him harmless. The opinion is based, to some extent, upon the express authority of Green v. Cresswell, 10 Ad. & El. 453. In a later case (Barry v. Ransom, 12 N. Y. 462), decided in 1855, it was held that The leading and perhaps the best considered cases to be found which follow in the wake of Green v. Cresswell and Kingsley v. Balcome are Easter v. White, 12 Ohio St. 219; Bissig v. Britton, 59 Mo. 204, 21 Am. Rep. 379; Macey v. Childress, 2 Tenn. Ch. 438; and Nugent v. Wolfe, 111 Pa. 471, 56 Am. Rep. 291. The Ohio case was decided long prior to the English case of Wildes v. Dudlow, while the Missouri case was almost concurrent in time with it, but without knowledge of its announcement, and was not in any manner controlled by it. The other two cases cite it with disapproval. The clearest illustration of the prin ciple maintained by these cases is to be found in Nugent v. Wolfe. The First National Bank of Ravenna, Ohio, had obtained judgment against Powers & Co. Nugent went security for Powers & Co., as he alleges, at the request of Wolfe, accompanied with a verbal undertaking or agreement to save Nugent harmless in his undertaking for Powers & Co. with the bank. The court in deciding the case, says: There is no testimony, nor was any offered, to show that defendant had any personal interest in the judgment on which bail was entered, or that he held property or funds that should | have been applied to the payment thereof. So far as appears, it was the proper debt of Pow ers & Co., and the substance of defendant's agreement is that he would see that they paid it, and, if they failed to do so, he would pay it for them. It was literally a promise to answer for the default of Powers & Co. Plaintiff's lability as bail for stay was merely collateral to the debt in judgment, and had in contemplation nothing but the payment thereof to the bank." The cases which are usually classed as fol lowing Thomas v. Cook and Chapin v. Merrill may be subdivided into three classes, in consideration of the grounds upon which each is apparently sustained. First. It is held that where the inducement for the promise of indemnity is a benefit to the promisor which he did not before, or would not otherwise enjoy, as where he has a personal, immediate, and pecuniary interest in the principal transaction, and is therefore himself a party to be benefited by performance on the part of the promisee, the contract is not within the statute, and may be supported by a verbal undertaking. In reality the undertaking is to pay a debt which is, in substance, the debt of the promisor. Smith v. Delaney, 64 Conn. 264; Davis v. Pat rick, 141 U. S. 479, 35 L. ed. 826; Reed v. Holcomb, 31 Conn. 360; Potter v. Brown, 35 Mich. 274: Hilliard v. White (Tex. Civ. App.) 31 S. W. 553; Emerson v. Slater, 63 U. S. 22 How. 43, 16 L. ed. 365. The doctrine established by these authorities does not seem to be at variance with Green v. Cresswell and Kingsley v. Balcome. See Waterman v. Resseter, 45 Ill. App 155, 165. It cannot be true, as has been intimated, that a new and independent consideration, moving from the promisor to the promisee, will support a verbal promise; for this does not meet the statute, as the writing or memorandum which the statute requires must itself be supported by a consideration. See Mallory v. Gillett, 21 N. Y. 412, 414. Second. The promise of indemnity is not a contract with the creditor to answer for the default or miscarriage of the debtor, but is independent of the principal contract or obligation, and constitutes an entirely distinct and separate undertaking, with which the creditor has nothing to do, and which cannot avail him or redound to his benefit in any manner. In such a case the assumption of the liability by plaintiff is itself a sufficient consideration to support the promise, regardless of any subservient interest of the promisor, or of the fact of his becoming cosurety with the promisee, and it need not be in writing. Mills v. Brown, 11 Iowa, 314; Dunn v. West, 5 B. Mon. 376; Lucas v. Chamberlain, 8 B. Mon. 276; Holmes v. Knights, 10 N. H. 175; Jones v. Bacon, 72 Hun, 506; S. C. on appeal, 145 N. Y. 446; George v. Hoskins, 17 Ky. L. Rep. 63; Shook v. Vanmater, 22 Wis. 532; Vogel v. Melms, 31 Wis 306, 11 Am Rep. 608; Boyer v. Soules, 105 Mich. 31; Minick v. Huff. 41 Neb. 516; Tighe v. Morrison, 116 N. Y 270, 5 L. R. A. 617; Wildes v. Dudlow, L. R. 19 Eq. 198, and Chapin v. Merrill, 4 Wend. 657. Third. Where the promisee, under the promisor's agreement to indemnify and save harmless, becomes jointly liable as cosurety with him for the same obligor, such an agreement is held to be an original undertaking, and not within the statute. As sustaining this proposition, Thomas v. Cook is directly in point. See also Horn v. Bray, 51 Ind. 555; Apgar v. Hiler, 24 N. J. L. 812; Chapeze v. Young, 87 Ky. 476; Adams v. Flanagan, 36 Vt. 400; Baldwin v. Fleming, 90 Ind. 177; Houck v. Graham, 123 Ind. 277; Barry v. Ransom, 12 N. Y. 462; Jones v. Letcher, 13 B. Mon. 363; Oldham v. Broom, 28 Ohio St. 41; Brandt, Suretyship, § 226; Mickley v. Stocksleger, 10 Pa. Co. Ct. 345; Blake v. Cole, 22 Pick. 97. It is within this latter class that the case at bar must be grouped. The authorities have not concurred entirely in the reasoning which is supposed to support the doctrine upon which these cases proceed. Chancellor Cooper in Macey v. Childress, 2 Tenn. Ch. 438, says they "may be safely rested on the well established doctrine that a surety may by parol limit the extent of his liability as between him and the other parties to the paper." Mickley v. Stocksleger distinguishes Nugent v. Wolfe, in that the latter case "was in no way connected with the original cause of action; he was not a party liable, and it did not appear that he had any personal interest in the judgment on which the plaintiff was the only bail for the stay of execution.' Mr. Browne ventures a reason for which he declares that none other exists so satisfactory or consistent with the spirit of the statute. The reason is alike applicable to the second and third classes above enumerated. The troublesome element in the cases is that by the hypothesis there are, or are to be, two different persons concurrently liable to the plaintiff to do the same duty. He says: "The implied obligation of the third party exists only by force of, and incidental to, the special contract between the plaintiff and defendant," and "that the statute contemplates only obligations of the third party previously existing or incurred contemporaneously with the defendant's special promise, or afterwards, as the case may be, but always existing, or to exist, independently of any contract of guaranty between the plaintiff and defendant: an obligation which exists, or may exist, whether any contract be made between the plaintiff and defendant or not; not an obligation which comes into existence only as a legal incident of the contract which they have made." Browne, Stat. Fr. § 162. But, seek where you will for a plausible footing upon which to found the obligation so as not to come within the purview of the statute of frauds, the distinction taken in Green v. Cresswell, of Thomas v. Cook, that the. promisee became likewise bound upon the obligation with the promisor, as cosureties, and for this reason, if not also for the reason upon which the second class is supported,that it is not an undertaking with the creditor,-the indemnity is not within the statute. whether adequate or not, has taken deep hold in the judicial mind, and the undoubted weight of authority in this country is grounded upon it. Indeed, the doctrine is even regarded as settled. Mr. Throop, in his treatise on the Validity of Verbal Agreements ( 474), says: "As the result of the conflict of authority upon this question [speaking generally of contracts of indemnity against a surety's liability], nothing can be regarded as definitely settled, except, perhaps, that, where the promisor and promisee are about to unite in an instrument as sureties for the third person, the promise to indemnify is not within the statute." If one cosurety can, by a verbal undertaking, indem nify another in whole against the obligation of the latter, without suffering the interdiction of the statute, he may also in part, as the greater includes the less; and thus it is that cosureties may, by contract, agreement, or understanding between themselves, limit and fix the proportion and extent of their several or correlative liability, and it is competent to estab lish the agreement by parol. So we conclude that it was competent for the plaintiff and defendant to enter into such a contract or agreement as is set forth in plaintiff's complaint, and the fact that it is not in writing cannot be taken as an objection against its enforcement. Now as to the question whether, in view of the evidence, the court erred in taking the case from the jury and sustaining the motion for nonsuit. Without intimating any opinion as to the weight and effect to be given to the testimony,-that being a matter for the jury to determine,-and without recapitulation here, let it suffice to say that we deem the evidence introduced competent and sufficient to go to the jury for their consideration whether or not there was such an agreement entered into between the parties touching their correlative liabilities as plaintiff has alleged by his complaint. Tippin v. Ward, 5 Or. 453; Brown v. Oregon Lumber Co. 24 Or. 317; Vanbebler v. Plunkett, 26 Or. 562, 27 L. R. A. 811; Baldwin v. Fleming, 90 Ind. 177. Let an order be entered remanding the case for a new trial. INDIANA SUPREME COURT. Patrick HAGGERTY, Appt., V. Mary J. WAGNER. (........Ind.........) 1. A wife's inchoate interest under Rev. Stat. 1894, § 2652, in real property owned by her husband as a tenant in common, may be extinguished by a partition sale notwithstanding the Indiana statutes make no provision for the partition of her inchoate right and the courts are not authorized to direct the payment of any part of the proceeds to her upon such a sale. 2. A statute providing that a judicial sale of a man's property in a suit to which his wife is not a party shall not prejudice her dower rights has no effect in case of a sale for partition of land in which he has an sale is not reduced to that merely of co owners so as to leave the property subject to the inchoate dower rights of their wives, by a statute providing that the conveyances shall bar all claims of such owners to said lands as effectually as if they themselves had executed the same. 6. The inchoate right of a wife under Rev. Stat. 1894, § 2652, in land held by her husband as a cotenant, may be barred by a partition sale in an action to which she was not a party, notwithstanding Rev. Stat. 1894, § 2660, providing that no sale of the busband's property by virtue of any decree to which she shall not be a party shall affect her rights, as that section applies only where the wife is a necessary party, which she is not in such action. undivided interest, where another statute desig-A nating the persons to be made parties to par tition proceedings does not recognize her as a necessary one. 3. The interest of a woman in an undivided share of real estate held by her husband in common with others, which is contingent on her surviving him, does not bring her within the pro visions of a statute authorizing persons to be made parties to partition proceedings who are "necessary to complete determination or settlement of the questions involved,"-especially where there is no authority to award her any of the proceeds of the sale. 4. The inchoate right of the wife of a cotenant of real estate is subject to the liability of the husband's estate to be devested by a par tition sale. 5. The effect of the deed in a partiton NOTE.-The Indiana law as to rights of wife in husband's property is peculiar to itself. For the kindred question of dower, see Flowers v. Flowers (Ga.) 18 L. R. A. 75, and note; also Butler v. Fitzgerald (Neb.) 27 L. R. A. 252. (Jordan, J., dissents.) (November 4, 1897.) PPEAL by defendant from a judgment of favor of plaintiff in an action brought to obtain the Superior Court for Marion County in partition of certain real estate. Reversed. The facts are stated in the opinion. Messrs. Ayres & Jones and Caroline B. Hendricks, for appellant: The wife's inchoate interest in husband's real estate is a matter subject to legislative con trol Noel v. Eroing, 9 Ind. 37; May v. Fletcher, 40 Ind. 575; Weaver v. Gregg, 6 Ohio St. 547, 67 Am. Dec. 355; Lawrence v. Miller, 1 Sandf. 516, Overruled 2 N. Y. 245, upon another point; Jackson v. Edwards, 7 Paige, 386; Davis v. Lang, 153 Ill. 175; 1 Washb. Real Prop. p. 208, *158; Story, Confl. L. § 109; Park, Dower, 5. The wife's inchoate right is an incident of the husband's seisin, and this seisin may be terminated at any time by authority of the legislature in sale under partition. v. Moore v. New York, Sandf. 456; Jackson Edwards, 22 Wend. 498. It is an incident to an estate held in common that the tenant can be compelled to make par- | 19, 87 Am. Dec. 346; Francisco v. Hendricks, tition. 28 Ill. 67. Lee v. Lindell, 22 Mo. 202, 64 Am. Dec. 262; Potter v. Wheeler, 13 Mass. 506; 1 Washb. Real Prop. p. 208, *158. The law gives the wife an inchoate interest in the real estate of her husband as against the voluntary act of the busband, and not as against legislative provision for the general good. Jackson v. Edwards, 22 Wend. 519; Weaver 7. Gregg, 6 Ohio St. 552, 67 Am. Dec. 355. The wife is not a necessary party, and her appearance in suit could not affect her interests therein. Holley v. Glover, 36 S. C. 404, 16 L. R. A. 776; 1 Washb. Real Prop. p 208, *158; Lee v. Lindell, 22 Mo. 202, 64 Am. Dec. 262. It was the legislative intent to devest the wife of her inchoate interest without making her a party to the proceedings. Daris v. Lang, 153 Ill. 175; Wearer v. Gregg, 6 Ohio St. 547, 67 Am. Dec. 355; Ilinds v. Stevens, 45 Mo. 209; Lee v. Lindell, 22 Mo. 202, 64 Am. Dec. 262. Mr. T. E. Johnson, for appellee: Mrs. Wagner had an inchoate interest in the land at the time the partition proceedings were instituted in May, 1856, which interest under the rulings of this court she took by purchase. Richardson v. Schultz, 98 Ind. 435. The title of the wife, when it vests, is absolute as against a grantee of the husband, so that it does not merely encumber the land, but tears up the title from the very roots. Bever v. North, 107 Ind. 548; Tanguey v. O'Connell, 132 Ind. 63; Rev. Stat. 1881, § 2508. Ample provisions are made for the ascertain ing and the settling the rights of the parties in the land, and if the land cannot be divided without damage to the owners, and consequently has to be sold, the court has power to adjust and secure the rights of the parties in the proceeds of such sale. Milligan v. Poole, 35 Ind. 68; Martindale v. Alexander, 26 Ind. 104, 89 Am. Dec. 458; Schissel v. Dickson, 129 Ind. 149. To give validity and effect to a partition all persons interested should be made parties to the suit. Milligan v. Poole, 35 Ind. 68. The inchoate rights of the wife are as much entitled to protection as the vested rights of the widow. Fletcher v. Holmes, 32 Ind. 537; Mills v. Van Voorhies, 20 N. Y. 420; Bell v. New York, 10 Paige, 49. Of the right of a surviving wife to one third of the land of which the husband was seised during coverture, she cannot be deprived by any act of the husband alone; and any attempt to defraud her of her marital rights cannot receive the sanction of the law. Johnson v. Miller, 47 Ind. 376, 17 Am. Rep. 699. Where the inchoate right of dower is affected by decree, the wife is a necessary party to the action. Damm v. Moon, 48 Mich. 510; Rosekrans v. Rosekrans, 7 Lans. 486; Greiner v. Klein, 28 Mich. 17. Neither the husband nor the court, nor any other human power, can compel the wife to relinquish her right of dower, inchoate though it may be, when she is asking the aid of the court. Royston v. Royston, 21 Ga. 172; Lawson v. De Bolt, 78 Ind. 567. The universal rule of the courts of Ohio, with the single exception of Weaver v. Gregg, 6 Ohio St. 547, 67 Am. Dec 355, has been that a wife's inchoate dower rights can in no regard be affected by an action at law or in chancery, to which she is not a party. Black v. Kuhlman, 30 Ohio St. 196; Unger v. Leiter, 32 Ohio St. 210; Dingman v. Ding. man, 39 Ohio St. 172; Mc Arthur v. Franklin, 15 Ohio St. 485; Mandel v. McClave, 46 Ohio St. 407, 5 L. R. A. 519. McCabe, J., delivered the opinion of the court: Appellee sued appellant in the superior court for partition of lots 16 and 17 in Hannaman's south addition to the city of Indianapolis, and to quiet her title to her alleged proportion thereof. The action was commenced May 3, 1894. The issues formed were submitted to and tried by the court, resulting in a special finding of facts, upon which the court stated conclusions of law favorable to the plaintiff. Judgment was rendered pursuant to the conclusions of law, in favor of the appellee. The conclusions of law are assigned for error. The material facts found are, in substance, that appellee, Mary J. Wagner, and said Peter Wagner were married on November 22, 1855, in Clay county, Indiana, where they lived together as husband and wife until May 11, 1887, when said Peter died intestate, leaving an estate of less than $5,000, and left surviving him said Mary J. as his widow, together with five children. At and prior to May 16, 1856, said Peter Wagner, the husband of appellee, was the owner in fee simple of an undivided interest in a tract of land of about 6 acres, situated in Marion county, Indiana, out of which the lots in dispute have been carved. At said date he and some ten other persons held the aforesaid tract, undivided, as tenants in common. On said May 16, 1856, proceedings for partition were instituted by said Peter Waguer and others of his cotenants against the cotenant George Wagner in the common pleas court of said county. At the trial of that cause the land sought to be partitioned was found not to be susceptible of division, and the same was by the court ordered to be sold as an entirety, and David S. Beaty was appointed a commissioner to make the sale thereof; and in parsu Dower was given by our statutes for the support and maintenance of the widows, and to permit any act of the husband to lessen or in-ance of such order he sold said real estate to jure that right would be in direct opposition William Smith, and executed to him a commisto the spirit and meaning of the law. sioner's deed for the same, which deed was Rank v. Hanna, 6 Ind. 22; Knapp, Partition, approved by the court, and duly recorded, and p. 288; Foltz v. Wert, 103 Ind. 413; Elliott v. the proceeds arising from the sale were paid to Cale, 113 Ind. 393; Verry v. Robinson, 25 Ind. and divided among the parties to the action ac |