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of the constitutional guarantees of life, liberty, and property-especially of the privilege of trial by jury in criminal cases. In the draft of a Constitution reported by the committee of five on the 6th August, 1787, in the convention which framed the Constitution, the fourth section of article 11 read that 'the trial of all criminal offenses (except in cases of impeachment) shall be in the states where they shall be committed, and shall be by jury.' 1 Elliott's Deb. (2d Ed.) 229. But that article was, by unanimous vote, amended so as to read: "The trial of all crimes (except in cases of impeachment) shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, then the trial shall be at such place or places as the Legislature may direct.' Id. 270. The object of thus amending the section, Mr. Madison says, was 'to provide for trial by jury of offenses committed out of any state.' 3 Madison, Papers, 144. In Reynolds v. United States, 98 U. S. 145, 154, 25 L. Ed. 244, it was taken for granted that the sixth amendment of the Constitution secured to the people of the territories the right of trial by jury in criminal prosecutions; and it had been previously held in Webster v. Reid, 11 How. 437, 460, 13 L. Ed. 761, that the seventh amendment secured to them a like right in civil actions at common law. We cannot think that the people of this District have, in that regard, less rights than those accorded to the people of the territories of the United States." In a recent case this same question was again before the Supreme Court of the United States, in construing an act of Congress which provided that misdemeanors in Alaska may be tried by a jury composed of 6 persons. In Rassmussen v. United States, 197 U. S. 516, 25 Sup. Ct. 514, 49 L. Ed. 882, it was held that, under article 3 of the Constitution and the sixth amendment to the federal Constitution, Congress cannot deprive a person, charged with a misdemeanor, of a trial by common-law jury, and that section 171 of the Alaska Code (31 Stat. 358), in so far as it provides that in trials for misdemeanors 6 persons shall constitute a legal jury, is unconstitutional and void.

But it may be said that the requirements of the Constitution of the United States are fully satisfied where the accused is accorded, at some stage of the prosecution, a right of trial by jury; and it was so held by this court in the case of Collier v. Territory, 2 Okl. 444, 37 Pac. 819, where it was held that: "A law of the Legislature of this territory, which provides that cases which the justice court has power to hear and determine may be tried before a jury of 6 men, and where it gives the defendant the right of appeal to the district court, where he may be tried by a jury of 12 men, is not unconstitutional." It will be seen that this rule announced by our court is in direct conflict with the deci

sions of the Supreme Court of the United States above cited. In Callan v. Wilson, supra, it was urged by the government that the requirements of the Constitution were fully met where the accused is accorded, at some stage of the prosecution against him, the right of trial by jury. Mr. Justice Harlan, after referring to the various statutory provisions of the District of Columbia, said: "These provisions, undoubtedly, secure the right of appeal from the police court to the Supreme Court of the District, and a trial by jury in the latter court. But the fact re mains that the accused may, under the stat ute, be tried in the court of original jurisdiction upon the issue of guilt or innocence, and by its judgment, unless he gives security for his appearance in another court, he may be deprived of his liberty. The police court is not, in such cases, an examining court merely, but a trial court, in the fullest sense of those words." And, after reviewing the authorities upon this subject, the learned justice concludes: "We cannot assent to that interpretation of the Constitution. Except in that class or grade of offenses called 'petty offenses,' which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose, the guaranty of an impartial jury to the accused in a criminal prosecution, conducted either in the name or by or under the authority of the United States, secured to him the right to enjoy that mode of trial from the first moment and in whatever court he is put on trial for the offense charged. In such cases a judgment of conviction, not based upon a verdict of guilty by a jury, is void. To accord to the accused a right to be tried by a jury in an appellate court, after he had been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the Constitution. When, therefore, the appellant was brought before the Supreme Court of the District, and the fact was disclosed that he had been adjudged guilty of the crime of conspiracy charged in the information in this case, without ever having been tried by a jury, he should have been restored to his liberty."

The rule announced in Collier v. Territory, being in conflict with the settled decisions of the Supreme Court of the United States, is overruled, in so far as it conflicts with this opinion. It follows that the provisions of the act of the Legislature depriving the defendant in this case of a right to a trial by a common-law jury are repugnant to the Constitution of the United States, and therefore unconstitutional and void.

The judgment of the probate court is reversed, and the cause remanded, with directions to discharge the defendant. All the Justices concurring.

(17 Okl. 427)

SUTHERLAND et al. v. TAINTOR.
(Supreme Court of Oklahoma. Sept. 6, 1906.)
SPECIFIC PERFORMANCE-PAROL CONTRACT AS
TO LAND.

The courts will enforce a parol agreement for the sale of real estate, where the vendee has paid the consideration and taken possession, in good faith, of the premises, with the knowledge and consent of the vendor, and made permanent improvements thereon.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44. Specific Performance, § 135.]

(Syllabus by the Court.)

HAINER, J. (after stating the facts). It is contended by plaintiff in error that the parol contract which was made the basis of this action was void, and nonenforceable under the statutes of Oklahoma, and this is the only question relied upon for a reversal of the cause. This contention cannot be sustained. The plaintiff in the court below did not rely solely upon the contract, but based his contention upon the ground that the contract was fully executed by the plaintiff, in this, that the consideration was paid, and that the plaintiff was put in possession of the premises, and immediately commenced

Error from District Court, Beaver County; to improve the land and make permanent imbefore Justice J. L. Pancoast.

Action by Fred Taintor against Robert A. Reiser and others. Judgment for plaintiff, and defendant J. R. Sutherland brings error. Affirmed.

"A

provements thereon, and hence that the contract was enforceable, although it was merely a parol agreement, and no note or memorandum was made between the parties at the time said contract was entered into. And this was the finding of the trial court, after hearing the evidence that was adduced upon the trial. In Halsell v. Renfrow, 14 Okl. 674, 78 Pac. 118, this court had this question under consideration, and it was there held: parol agreement for the sale of real estate may be specifically enforced where there has been such part performance of the contract as would make it impracticable to place the parties in their original positions, and thus make it a fraud upon one of the parties not to enforce the agreement." And that "the payment of the purchase money is not alone such part performance of an agreement to sell real estate as will authorize a to enforce its specific performance. But part payment and taking possession in good faith, or taking possession with the knowledge of the vendor and making valuable improvements, constitute such part performance as will ordinarily warrant a court in decreeing specific performance of the contract." We think this case is decisive of this question, and that the court was fully warranted, under the evidence, in decreeing specific performance.

This was an action brought in the district court of Beaver county by the defendant in error, Fred Taintor, plaintiff in the court below, against Robert A Reiser, Ernest R. Wood, and the Stockgrowers' National Bank of Ashland, Kan. The action was for specific performance, based on an oral contract alleged to have been made between Fred Taintor and R. A. Reiser on or about the 4th day of May, 1901, the consideration being $361.25; that immediately thereafter the defendant in error, the plaintiff in the court below, took possession of the premises, and began to improve the same. Notwithstanding the oral contract with Taintor, the defendant Reiser executed a deed to the land in controversy to Ernest R. Wood, on or about August 1, 1901; and it is alleged in the petition that the defendant Wood had full knowledge of the contract between Taintor and Reiser, and that he was at that time in the employ of Taintor. And it was further alleged that the deed was taken by Wood from Reiser with the intent to defraud Taintor. Pending the litigation, the plaintiff in error, J. R. Sutherland, purchased the land in controversy from the defendant Wood, and filed his interplea in this action, claiming to be a purchaser of the premises in good faith, for a valuable consideration, without notice. The defendant Reiser being a nonresident, publication service was had as to him. The defendant Wood made no appearance, although personal service was had upon him, and no answer was filed by him, and the cause was tried to the court as between the interpleader, J. R. Sutherland, and the plaintiff, Fred Taintor. The court, after hearing the evidence, found the issues in favor of the plaintiff, and against the defendants and the interpleader, and rendered a decree for specific performance of the contract. From this judgment the interpleader, J. R. Suther-rights, shall be set apart as her property in fee land, appeals.

Dyke Ballinger, for plaintiff in error. Francis C. Price and R. II. Loofbourrow, for defendant in error.

There being no error in the record, the judgment of the court below is affirmed. All the Justices concurring, except PANCOAST, J.. who presided in the court below, not sitting.

(31 Utah, 255)

In re PARK'S ESTATE.
IIILTON r. STEWART.
(Supreme Court of Utah. Nov. 16, 1906.)
DOWER-CONVEYANCE BY HUSBAND-CLAIM

AGAINST ESTATE.

Rev. St. 1898, § 2826, provides that "onethird in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage and to which the wife had made no relinquishment of her

simple if she survive him." This statute became effective January 1, 1898, and prior to that time the widow's interest was a life estate. Petitioner asked to have one-third the value of lands conveyed by her husband without a relinquishment of her interest prior to January

1, 1898, set apart, and distributed to her out of her husband's estate. Held, that the widow was not entitled either to have the value of her fee simple or of her life interest in such lands set apart to her out of her husband's estate, as her interest in the property is in the nature of an incumbrance on each specific parcel.*

[Ed. Note. For cases in point, see Cent. Dig. vol. 17, Dower, § 114.]

Appeal from District Court, Salt Lake County George W. Armstrong, Judge..

Application by petitioner Annie F. A. IIIlton against the estate of John R. Park, deceased, S. W. Stewart, executor. Demurrer to the petition sustained, and petitioner appeals. Affirmed.

See 81 Pac. 83.

N. V. Jones, for appellant. Barnard J. Stewart, for respondent.

FRICK, J. This is an application by the petitioner, Annie F. A. Hilton, against the estate of John R. Park, deceased. In her petition filed in the district court, probate division, she makes in substance the following statements of fact: That the last will and testament of John R. Park, deceased, was duly admitted to probate October 20, 1900; that the respondent, S. W. Stewart, was duly appointed executor of said will, and as such claims the right, title, and possession in and to all the property belonging to said estate. That the appellant and John R. Park intermarried at Salt Lake City, Utah, on the 5th day of December, 1872, and that they continued husband and wife from said date until the death of said Park, which occurred September 30, 1900; that she continued a resident of Salt Lake county from the time of said marriage to the filing of said petition. That said John R. Park, deceased, was, subsequent to, and during said marriage, seised in fee and possessed of various parcels of real estate, all of which, together with the value thereof, is fully set forth and described in said petition.

It is further alleged that said John R. Park, deceased, after said marriage and during its existence, between the 15th day of March, 1887, and the 16th day of January, 1894, sold and conveyed the real esstate described in said petition, and that the appellant did not join in said conveyance, nor at any time relinquish her interest in or to said real estate, nor receive anything in lieu therefor, nor any consideration for the same. That the grantees of said Park went into possession of said real estate respectively conveyed to them, and that they and their successors in interest have remained and are in possession thereof, and claim title thereto and to the whole thereof, adverse to the petitioner. That one-third in value of the real estate conveyed by sald Park, as set forth in said petition, amounts to the sum of $10,733; that the petitioner, as the widow of said John R. Park, deceased,

*Hilton v. Thatcher, 88 Pac. 20.

is entitled to recover against his said estate the said sum of $10,733, as and for her onethird interest in the lands conveyed by him as above stated; that the estate of said John R. Park, deceased, is solvent, and that said S. W. Stewart, as executor of aid estate, has in his possession property of the value of $35,000. undistributed, out of which he can compensate the petitioner for her interest in said real estate.

Petitioner further alleges that in a former action this court determined her status, and adjudicated that she is the widow of said John R. Park, deceased, and entitled to a widow's share in his said estate. Upon substantially the facts, as above stated, petitioner prays judgment, that one-third in value. of all the real property, described in said. petition, be set apart and distributed to her out of the property of said estate, amounting to the sum of $10,733, with legal interest thereon, from March 1, 1891, and for general relief. To this complaint S. W. Stewart, as the executor of said estate, demurred generally and specifically, which demurrer was sustained by the trial court, and petitioner's application dismissed, and hence this appeal.

While the demurrer sets forth a number of specific grounds, in view of the conclusion we have reached we shall consider and discuss but one ground, namely, that the complaint does not state facts sufficient to entitle the petitioner to the relief asked against said estate. The question, therefore, is: Did the court err in sustaining the demurrer on the general ground above stated? For convenience the petitioner will hereafter be designated as "appellant," and the executor as "respondent."

It will be observed that appellant in this proceeding does not seek to recover her alleged interest as the widow of John R. Park, deceased, in the specific real estate conveyed by him, but she seeks to obtain the value of one-third thereof out of the property of the estate. In other words, she seeks to recover the value of a one-third interest in a lump sum against the estate of her deceased husband. She bases her claim upon section 2826 Rev. St. 1898, which, so far as material here, reads as follows: "One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property in fee simple if she survive him;

Property distributed under the provisions of this section shall be free from all debts of the decedent, except those secured by mechanics' liens for work or labor done or material furnished exclusively for the improvement of the same, and except those created for the purchase thereof, and for taxes levied thereon." This section forms part of what is known and designated as the "Revised Statutes of Utah, 1898," and

the laws therein contained were adopted as a Revision of the Laws of Utah in force up to that time and became effective on January 1, 1898. From the time Utah was organized as a territory, with the exception of the period from February, 1872 to March, 1887, the common law, or statutes declaratory thereof constituted the law upon the subject of dower in Utah until the 1st day of January, 1898, when section 2826, above quoted, went into effect as part of the Revised Statutes aforesaid.

A brief history of the law upon the subject of a widow's interest in the lands of her husband is given in the case of Annie F. A. Hilton (this appellant) v. George W. Thatcher et al., 88 Pac. 20 (decided this term) to which case we refer for a detailed statement respecting the law, with its various changes upon that subject. In view of the law as there stated to be we held in that case: (1) That the right to an interest by the wife in the lands of her husband, owned by him during the marriage, was continuous from March 1887, to the present time; (2) That the measure of that right must be ascertained from the law in force at the time alienation took place by the husband without the consent of the wife; (3) That the right itself to such an interest must be determined by the law in force at the death of the husband; and (4) That the estates of dower and courtesy, as such, were abrogated by the adoption of section 2832 of the Revised Statutes of 1898, but that, by the adoption of section 2826, the right itself was continued in force as an enlarged estate or interest. Prior to the enactment of section 2826, the widow, upon the death of her husband, was entitled to a one-third part of all lands of which he was seised during the marriage, and the extent of such interest was a life estate, while under that section she is entitled to one-third in value of the lands so owned by him, or in which he has an equitable estate, the same to be set apart to her in fee simple.

point above stated, nor have we been able to find any. The authorities upon some of the propositions laid down by us, supra, are quite numerous, and the law as stated in the second and third propositions at least seems to be well settled.

The

As to the first and fourth propositions there is a conflict, and we have determined as therein stated, and, as we believe, in accordance with the weight of authority. As a matter of legal history of which we, in common with all courts, take judicial knowledge, the law giving the wife an interest in her husband's lands has not only existed in some form, either statutory or according to the common law, before and since the formation of our government, but it has frequently been the subject of judicial inquiry in this country in all of its phases for nearly if not quite two centuries. fact, therefore, that no adjudicated cases can be found upon the precise point involved in this case is a circumstance from which an inference is permissible, more or less strong, that no one has heretofore attempted to recover the wife's share in the lands of her deceased husband conveyed by him during the marriage without her consent, out of his estate, instead of having recourse to the lands so conveyed. While this fact may not be conclusive respecting her right to do this, still it is a very important factor to be considered. In the absence of judicial authority, we must therefore seek for a solution by having recourse to general principles as deduced from statutes and other laws upon the subject. Does section 2826 give such a right? We think not. Counsel for appellant lays much stress upon the wording of that section in that it says "one-third in value" shall be the wife's interest. This of itself added nothing at all to her interest. At common law all courts in distributing the wife's share always sought to fix it as nearly as possible in each case at one-third the value, even where the same was set off to her in To have done otherwise would have been a farce not to be tolerated by any court. But the statute does not say that this onethird in value shall be set apart to her out, of the estate of the husband, but the statute says "one-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage shall be set apart as her property in fee simple if she survive him." This refers to the land itself that was possessed by him during the marriage, not to any kind of property that may be left by him at his death constituting his estate. Moreover appellant's counsel concedes that the law in force at the time of the husband's conveyance controls as to the measure of the wife's interest. If this be so, in case the law is changed after conveyance, and before the death of the husband, so as to enlarge the

kind. We thus have an enlarge

ment of the widow's interest becoming effective, as we have seen, January 1, 1898. Prior to that time her interest terminated as at common law, at her death. It will further be seen by an examination of the petition that all the lands involved in this action were alienated by appellant's husband after March, 1887, and before January 1, 1898. All of them were therefore conveyed while the wife was entitled to a life estate only. Notwithstanding this fact, she seeks in this proceeding to recover the full value of the interest in said lands given her under section 2826. Whether or not she can legally recover this interest is the question to be determined.

Neither the appellant nor respondent, as was frankly admitted by their counsel on the hearing of this case, have been able to find any adjudicated cases upon the precise

wife's interest, how can the wife claim the enlarged right against the husband's estate any more than she could against his grantee?

Under the law as it was at the time of the conveyance the husband had a legal as well as a moral right to transfer his entire interest. This interest consisted of the fee to the land, except that it was encumbered by the inchoate interest of the wife. In case she survived him she thus had and could have no greater interest in the lands conveyed by him than the law gave her. Legislature, by adopting section 2826, could not nor did it attempt to enlarge the widow's interest in then alienated lands. What could not be done directly we do not think can be or was contemplated to be done indirectly. But if appellant's contention is sound, the Legislature accomplished by indirection what she concedes they could not do directly. We cannot yield our assent to this contention, but feel constrained to hold that the wife, if she desires to recover her interest in her husband's lands alienated by him during marriage, without her consent, must resort to the lands themselves, and that she can recover such interest only as the law gave her at the time the lands were alienated by the husband. In all lands posIn all lands possessed by him at the time of his death, and in all that were alienated by him under the law as it stood at the time of his death, she takes her interest in accordance with that law. It must not be overlooked that the inchoate contingent interest of the wife in her husband's lands is in the nature of an incumbrancce which may or may not become an absolute and enforceable right dependent upon the one fact that she survives her husband. This incumbrance is against the land, and exists against each specific parcel while the right remains inchoate. Neither is the right changed when it becomes vested and enforceable upon the death of the husband, so that it may be shifted at the pleasure of the wife from one parcel to another, or against one grantee, and not against another. The interest of the wife is in the land itself to be apportioned to her one-third in value out of each parcel.

The right to an interest exists, if it exists at all, by virtue of the law, and not by virtue of contract, and hence must be enforced according to the law that gives the right to such interest. Counsel for appellant suggested in his oral argument that if we found that the wife could not recover the enlarged share out of the husband's estate, she might still be entitled to the lessor under the petition, since the lesser is included within the greater right. But we are of the opinion that she cannot recover either, against the estate of the husband, and for the same reasons, namely, that her right is against the land against which it constitutes a vested and

enforceable interest and incumbrance in her favor.

While it is true that her right to an interest accrues only at the death of her husband, yet, in view of the constitutional limitations under our form of government, rights become vested in accordance with the law in force, by enforceable obligations, at the time such rights are created, and all are bound by those limitations alike. To attempt an exception in favor of the wife would nullify this salutary provision of our Constitution precisely the same as if it were attempted for any other purpose. See 14 Cyc. 977-980, where the usual procedure and form of action is given for the recovery of dower or the substituted statutory interest in lieu thereof. The decisions of the various state courts upon the subject are referred to therein, and so far as we have been able to ascertain nothing is contained in any of them that is contrary to the views expressed in this opinion. Section 2826 does not, nor has any law in force at any time, either in the territory or state of Utah, ever conferred upon the widow the right to take the value of her interest in the husband's lands out of his estate. No doubt this may be consented to by all who have an interest in the estate, but what is demanded in this case is that this be accorded as a matter of legal right; this right is what this court is asked to declare to exist as a matter of law, and this, as we have attempted to show, the law does not sanction, hence we cannot grant it. The court, therefore, did not err in sustaining the demurrer.

The judgment is affirmed, at appellant's costs.

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(Supreme Court of Utah. Nov. 10, 1906.) 1. JUDGMENT-RES JUDICATA-SUBSEQUENTLY ACQUIRED TITLE.

A decree, enjoining plaintiff from entering on defendant's land, will not prevent plaintiff from bringing suit to modify such decree on a subsequently acquired right of way to enter on defendant's land to repair a water pipe located thereon, such decree only determining the rights of the parties up to the time when it was rendered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1090, 1115.]

2. QUIETING TITLE-FORM OF REMEDY-MODIFICATION OF DECREE IN INJUNCTION SUIT.

A suit to modify a decree restraining plaintiff from entering on defendant's premises on the ground that plaintiff has secured since the rendition of that decree a right of way over defendant's premises is essentially an original action to quiet title.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Quieting Title, § 1.]

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