Dissenting Opinion.
Jordan, J.I am compelled to dissent from the conclusion reached in the opinion of the majority of the court in this case.
The material and undisputed facts are, in brief, as follows: Appellee, Mary J. Wagner, and Peter Wagner were married on November 22, 1855, in Olay county, Indiana, where they lived together as husband and wife until May 11, 1887, on which date the husband died intestate, leaving an estate of less than ^5,000.00, and left surviving him, as his widow, said Mary J., together with five children. At and prior to May 16, 1856, Peter Wagner, the husband, was the owner in fee of an undivided interest in a tract of land of about six 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 16th day of May, 1856, proceedings for partition were instituted by said Peter Wagner and others of his co-tenants against their co-tenant, George Wagner, in the common pleas court of said county. At the *652hearing of the 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; and in pursuance of such order, he sold said real estate to William Smith, and executed to him a commissioner’s deed for the same, which deed was approved by the court, and duly recorded, and the proceeds 'arising from the sale were paid-to and divided among the parties to the action according to their respective shares and rights. Appellee, the wife of said Peter, at the time said action for partition was commenced, was not in any manner made a party plaintiff nor defendant to said action, nor did she join in any manner therein, neither was she notified of the pendency thereof, and had no knowledge of the said partition proceedings until after the death of her said husband. She never joined her husband at any time in the conveyance of any part of said real estate, nor in any manner or form disposed by her own act of her inchoate interest therein. Through mesne conveyances appellant became the owner of the lots now in controversy. The only question presented, under the above facts, for decision is: WaS Mrs. Wagner’s inchoate interest in the land as the wife of Peter Wagner, one of the tenants in‘common, extinguished by the judicial sale in the partition proceedings to which she was not a party, and is she by virtue of the decree in said action barred from asserting her interest in the lands after the death of her husband?
Counsel for the appellant affirm that the inchoate right of the wife must yield to the requirements of the paramount vested interests of more than, one, when, under the provision of the statute which compels partition among co-tenants, her husband’s land is sold by order of the court, in order that the proceeds may *653be distributed among such tenants. That in such actions the presence of the wife of any of the latter, as a party to the partition proceedings, was not intended or contemplated by the legislature in the enactment of the statute relating to the partition of lands. Upon the part of the appellee, it is contended by her counsel, ■ that where the premises are ordered sold in such actions she' is a proper and necessary party, in that event, in order that the commissioner’s deed may convey a perfect title, and, if not a party to the action, her inchoate interest is not barred.
It is a well settled rule that when actual partition is made of lands in which the husband holds an undivided moiety, the inchoate interest of the wife therein will instantly attach to the share allotted in severalty to her husband, unless fraud has been practiced upon her in the partition proceedings. This result does not depend upon any order or action of the court, but equity will shift this interest of the wife to the part set off to the husband without the former being a party to the proceedings. By this result her right is protected and preserved without her presence as a party to the suit. The result and effect of the decree when the wife is not a party, and the property in common is ordered by the court to be sold, is a debatable proposition, upon which the authorities conflict. This leads to an examination and review of those bearing upon this question. In Jackson v. Edwards, 7 Paige (N. Y.) p. 386, the holding seems to be that a sale, so made, does not divest the inchoate right of dower, for the reason, as expressed by the chancellor, that the court possessed no power to compel the wife to accept provisions out of the proceeds of the sale in lieu o.f her interest and consequent right to the enjoyment of the land itself. This case (Jackson v. Edwards) was carried to the supreme court of New York, see 22 Wend. 498. *654Two opinions were given in this last appeal, one by Judge Bronson and the other by Senator Yerplanck. The former doubted whether the right of the wife to dower would be barred when the lands of the husband were ordered sold in a partition suit, though she be made a party thereto. Senator Yerplanck was of a different opinion, and said, on page 517: “I agree, however, with the position of the chancellor, that a sale in partition divests the inchoate rights of dower of the wife of a tenant in common, if she has been made a party to the suit ; and that purchasers under the judgment or decree will be protected against all future claims on her part.” The italics are my own. And further, in this connection, on page 519, the learned Senator said: “But the policy of the law is clearly only the protection of the wife’s dower against the abuse of the-husband’s power and his acts. Now a sale in partition cannot be the mere act of the husband. It must be shown to be necessary for the general benefit of all interested in the lands. To such a necessity, when allowed by the court, the husband’s right of property gives way, either with or without his consent; then the inchoate right of dower being but an incident, must follow. It does so, not only in this case, but in many analogous ones, where private property is taken for-public use and pecuniary compensation allowed, as in lands taken for streets in cities, for roads or for canals. In this instance of a partition sale, the sale is not allowed to be made for the purpose of divesting the wife’s dower, but it is made because the interest of numerous joint owners demands it. The wife’s future claim of dower is then divested, not by the act of her husband but by the necessary operation of law.”
The judges in this case, it appears, were all of the same opinion that the wife’s dower right could not be *655extinguished by a decree in an action to which she was not a party, but differed as to whether such a result could be obtained even though she were a party to the proceeding. The statute of New York relative to partition was amended in 1840 so as to authorize the making of the wife a party to such actions, and providing, further, that in the event of the sale of the premises her dower interest should pass to the purchaser, and that she should be remunerated therefor out of the proceeds of the sale. See Jordan v. Van Epps, 85 N. Y. 427. In the states of Ohio and Missouri it is held by the courts that sales made in actions for partition extinguish the wife’s right of dower as against the purchaser, although she was not a party to the action. Weaver v. Gregg, 6 Ohio St. 547, 67 Am. Dec. 355; Lee v. Lindell, 22 Mo. 202, 64 Am. Dec. 262. In the decision of Lee v. Lindell, supra (which was by a divided court, Leonard, J., dissenting), the fact that the statute did not require the wife to be a party seems to have exerted much influence upon the court in reaching the conclusion which it did. It is there said: “There being no law requiring her to be made a party, it is not perceived how the arbitrary use of her name can impart validity to a proceeding which, without it, w'ould not affect her.” The case of Weaver v. Gregg, supra, apparently controlled'to a great extent the decisions in other cases to which we refer. The rule asserted in the Ohio case was followed in Davis v. Lang, 153 Ill. 175, 38 N. E. 635, and in Holly v. Glover, 36 S. C. 404,16 L. R. A. 776, 15 N. E. 605.
In Rowland v. Prather, 53 Md. 232, in which the wife was held to be bound, the order of sale was made prior to the marriage, although the sale of the land was subsequent. The Maryland Court of Appeals in this case, in referring to and quoting from Weaver v. Gregg, supra, said: “It is not necessary for us to hold that a *656wife who was not a party to the suit, as was the case there, would be bound in this state, and that the purchaser in such case would be protected by the decree and sale; and we do not mean by making the quotation to be understood as so deciding; for, in this case, no marriage had taken place when the decree was passed, and no inchoate right even had attached before the decree was obtained. As a matter of fact, the widow had knowledge of the decree, sale and distribution of the proceeds of sale. So far as the distribution of sale was concerned, she was brought in and made a party by the interlocutory petition of her husband’s creditors to subject his portion to the payment of his debts. She could, and ought then to have applied for a portion in money in lieu of her dower. * * * If she had been brought in before sale, all she could have obtained would have been an allowance in money.”
In the appeal of Mitehell v. Farrish, 69 Md. 235, 14 Atl. 712, Weaver v. Gregg, supra, was again referred to. But the question as to whether it was necessary to make the wife of the tenant a party to the proceedings in partition was held to be, not necessarily in controversy. Judge Brinkerhoff, delivering the opinion of the court in Weaver v. Gregg, supra, said: “The fact that the wife was not a formal party to the proceeding in partition, does not, we think, at all alter the case. The terms of the statute do not require that she should be made a party, and we see no good reason why it should be required. On the whole, our view of the question is this: The right of dower in the wife subsists in virtue of the seizin of the husband; and this right is always subject to any incumbrance, infirmity, or incident, which the law attaches to that seizin, either at the time of the marriage or at the time the husband became seized. A liability to be *657divested by a sale in partition, is an incident which the law affixes to the seizin of all joint estates; and the inchoate right of the wife is subject to this incident. And when the law steps in and divests the Imsband ■of his seizin, and turns the realty into personalty, she is, by the act and policy of the law, remitted, in lieu of her inchoate right of dower in the realty, to her inchoate right to a distributive share of the personalty into which it has been transmuted.”
In Greiner v. Klein, 28 Mich. 12, it has been held that a sale in a partition suit to which the wife of one of the tenants was not made a party, did not serve to bar her of the right of dower. In this decision, Cooley, J., and Christiancy, C. J., concurred with Judge Graves, Campbell, J., dissented. Graves, J., speaking for the court, said: “Before acceding to the view that such a right may be extinguished through a suit in partition by .the husband, ■ instituted and carried to completion without her being a party or being represented, and without her having any chance to be heard, we ought to find the rule of law compelling it, most clear and decisive.
“It may be said that the provisions of the partition law are not so framed and arranged, unless we go outside and supplement the law by judicial legislation, as to make it practicable to guard the wife’s right, whether she be a party or not, where a sale becomes necessary.
“Were this to be admitted, it would not follow that we should assume the legislature to have intended that the right should be invaded and destroyed in her absence. At the utmost, nothing further could be inferred than that having made no adequate provision to protect her right in the event of a sale, it was not designed that a sale should interfere with the right.”
*658A standard author on judicial sales, says: “Nor will a sale in partition cut off the dower of a married woman, not made a party, although her husband be made such.” Rorer on Judicial Sales, p. 168, section 402. Citing in support of the text, Greiner v. Klein, 28 Mich. 12; Wilkinson v. Parish, 3 Paige Ch. 653; Jackson v. Edwards, 22 Wend. 498. In Knapp on Partition, p. 25, the author says: “The wife must be made a party. She has an inchoate, right of dower in the lands owned by her husband, and she must be either plaintiff or defendant in the action. The court, before it will order a sale of lands in partition, requires that all those that have an interest in them shall be made parties to the action, to the end that the purchaser may get a perfect title. Hence the wives of those entitled to the land should be made parties.” Citing Knapp v. Hungerford, 7 Hun. 588. Again, on page 108, the same author says: “The wives of the several owners are proper parties, but not necessary parties, except in case where a sale of the premises may be necessary, and in such a case, the party suing may properly make his own wife a defendant. The other defendants have no right to complain of the fact that such a wife is made defendant, instead of plaintiff, if she does not.” The decisions to which I have referred, appear, to some extent, at least, to rest, or depend rather upon local laws and local procedure, than upon any settled principle. To determine what should be the declared rule governing the case at bar, resort must be had to our own statutes relative to the interest of the wife in the husband’s lands, and the character of such contingent interest, as disclosed by the former decisions of this court, must be considered. An examination must also be made of the statute under which the partition proceedings in 1856 were instituted, and the procedure by which such actions were, by the code of *6591852, intended to be controlled. Section 2652, Burns’ R. S. 1894 (2491, R. S. 1881), of our law of descent, in force since 1852, secures to the wife of a deceased husband one-third in fee simple of all the real estate of which he may have been seized during the marriage, and in the conveyance of which she may not have joined in due form of law. Section 2660 of the same statute provides that: “Ho act or conveyance, 'performed or executed by the husband without the assent of his wife, evidenced by her acknowledgment thereof in the manner required by law; nor any sale, disposition, transfer or incumbrance of the husband’s property by virtue of any decree, execution or mortgage to which she shall not be party (except as provided otherwise in this act), shall prejudice or extinguish the right of the wife to her third of his lands * * * or preclude her from recovery thereof, if otherwise entitled thereto.”
In Grissom v. Moore, 106 Ind. 296, 55 Am. Rep. 742, in reference to thesé sections, Mitchell, 3., speaking for the court, said: “The inchoate right of the -wife attaches as an incident to the seizin of the husband during marriage. It cannot be divested or defeated by any act or charge of the husband, nor otherwise, except in the manner above provided. It can only be barred by a conveyance in which she joins, or by some proceeding to which all estates are subject, such as the exercise of the power of eminent domain, and the like. Her interest in the lands thus owned and conveyed by the husband, in the conveyance of which she has not joined, becomes consummate on his death. It accrues by virtue of the marital relation. She does not take as heir in lands so conveyed. . Rank v. Hanna, 6 Ind. 20; Verry v. Robinson, 25 Ind. 14; May v. Fletcher, 40 Ind. 575; Brannon v. May, 42 Ind. 92; Bowen v. Preston, 48 Ind. 367; Derry v. Derry, 74 Ind. *660560; Hendrix v. McBeth, 87 Ind. 287; Mark v. Murphy, 76 Ind. 534.”
In the appeal of Bever v. North, 107 Ind. 544, it was held that the wife’s interest in her husband’s real estate was not an incumbrance, but an estate in the land. This court, per Elliott, J., there said: “The estate of a wife under our statute 'is more than a right of dower, for it is paramount to the estate of one claiming through her husband, and sweeps entirely away all title of the purchaser to the one-third interest given her by the statute. The estate of the wife is not a mere incumbrance, but is an interest in the land which goes beneath the title acquired by a purchaser from her husband. Mark v. Murphy, 76 Ind. 534. When the rights of the wife prevail, the title of the purchaser from the husband disappears. If this title does disappear, then, of course, the purchaser had no title which he could • convey, and he cannot be permitted to aver, as against his grantee, that it was part of the consideration of the deed that the grantee should not acquire title to the land owned by the wife of a former owner unless he paid her for it. We can not regard the interest of the wife as an incumbrance, for it is an estate in the land itself. We cannot regard the estate of the wife as a mere right of dower, for there is no reversionary interest in the party who claims through the husband. The title of the wife, when it vests, is absolute as against a grantee of the husband, so that it does not merely incumber the land, but tears up the title from the very roots. It is not like the lease of a life-estate, for there the reversion is in the lessor, and he succeeds to the fee upon the determination of the life-estate. Here the fee never vests in the grantee of the husband. We cannot, therefore, regard as of controlling force the authorities which hold dower rights and life-estates to be mere incumbrances.”
*661Where the husband is seized of lands during the coverture, but the same have been conveyed without the wife joining, under section 2491, supra, she does not take as heir, but as a purchaser for value, as marriage is the highest consideration known to the law. Richardson v. Schultz, 98 Ind. 429, and authorities cited; Grissom v. Moore, supra.
In Thompson v. McCorkle, 136 Ind. 484, it was held that the wife’s inchoate interest was not, under the facts there stated, divested in the real estate of her husband sold for taxes. On page 499, this court said: “It is true the legislature may declare that a wife’s inchoate interest shall be divested by a tax sale, and a conveyance of the land thereunder, but our lawmakers have not so provided, and until it has been so enacted by clear and express words, her contingent interest should not be destroyed by judicial decision. This interest is in lieu of and is analogous to dower, except it has been enlarged from a life estate to a fee, and is guarded by more jealous care by legislative enactment and judicial decision.”
These decisions will fully serve to show the character of the interest with which the wife is vested in the realty of her husband under the provisions of the statutes of this State, and the manner in which it is favored and protected under the law as interpreted by the adjudications of this court.
Courts of sister states hold similar views in regard to the dower interest of the wife in the lands of the husband. Judge Bradbury, speaking for the court in Mandel v. McClave, 46 Ohio St. 407, on p. 414, said: “It is property; its value can be ascertained. More than this, it is a favorite of the law. * * A provision made for her support. * * * * * She is a purchaser. The inception of her right was earlier than that of the creditors; it began with the marriage and *662seizin of the husband. * * * This favorite of the law is entitled to protection equal to that accorded to her other property.” To the same effect is the holding of the court in Black v. Kuhlman, 30 Ohio St. 196; Unger v. Leiter, 32 Ohio. St. 210.
In Shell v. Duncan, 31 S. C. 547, on page 567, of the opinion of Mr. Justice Mclver, it is said: “Nothing t hat the husband may do can in any way affect it. From this, it follows that when the right, title, and interest of the husband is sold, either directly by himself or through the medium of an officer of the law, the purchaser takes no more than what was sold — the right, title, and interest of the husband, which does not include the dower interest — hence the purchaser must take his title subject to the wife’s right of dower.” See 5 Am. and Eng. Ency. of Law, p. 885.
In Simar v. Canady, 53 N. Y. 298, on page 304 of the opinion of the court, it is said: “We think that it must be considered as settled in this state, notwithstanding Moore v. Mayor, and some dicta in other cases, that, as between the wife and any other than the state, or its delegates or agents exercising the right of eminent domain, an inchoate right of dower in lands is a subsisting and valuable interest which will be protected and preserved to her, and that she has a right of action to that end.”
It is seen that this interest is an actual one in the lands of the husband, which, in the event of the death of the latter, passes into a fee, and that it is considered by the law in the sense of property, and as such ought to be accorded protection by the courts. Keeping in ■ view the principles enunciated by the decisions heretofore cited, and the sweeping force and effect of the above mentioned sections of the statute of descent, I may proceed, in the light of these and other statutes and decisions to which I will refer, with the investí*663gation of the cardinal question involved. It is clear that when this inchoate right once attaches to the real estate of the husband, there is no privity of the wife with him respecting such interest in his lands. It is a-universal, undisputed rule that a judgment or decree of a court is not binding on any one not a party thereto, or in any way represented by, or in privity with a party to the action or proceedings. Hence, it cannot be said that the appellee herein is concluded upon the grounds of privity with her husband. An act concerning the partition of lands was approved May 20, 1852, 2 Gavin & Hord, p. 361. The first section of this statute provided that “all persons holding lands as joint tenants, or tenants in common, * * * may be compelled to divide the same in the manner provided in this act.” The second section provided that the petition should set forth a description of the premises and the rights and titles of the parties therein interested. Section 18 made provision for the sale of the lands in the discretion of the court when the commissioners reported that a division could not be made. Under section 20 such sale was required to be made by a commissioner appointed by the court. Section 21 provided upon the payment of the purchase money “the court shall order such commissioner, * * * to execute a conveyance to the purchaser, which shall lar all claim of such owners to said land as effectually as if they themselves had executed the same.” The italics are mine. Section 23 provided for the distribution of the proceeds of the sale by the commissioner to the persons entitled thereto, according to their respective shares, under the direction of the court.
On June 18, 1852, an act concerning the civil procedure of courts and their jurisdiction was approved, being the code of 1852.- See 2 Gavin & Hord, p. 33; section 626 of this code providing that: “Actions may *664be brought for the partition of lands, * * * held or possessed by joint tenants; or tenants in common, in all cases; and the pleadings and practice in such actions shall conform to the provisions of this act.” By section 17, it was required that: “All persons having an interest in the subject of the action, and in obtaining the relief demanded, shall be joined as plaintiffs,” etc. Section 18 provided as follows: “Any person may be made a defendant who has, or claims, an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved.” Section 22 pro Added that: “The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had, without the presence of other parties, the court must cause them to be joined as proper parties,” etc. It appears that under the requirements of section 626, supra, that the pleadings and practice in partition suits must conform to the provisions of the code, which certainly included those provisions pertaining to parties to an action.
In Martindale v. Alexander, 26 Ind. 104, it is said: “The code provides a uniform proceeding for all existing rights, whether in law or equity, including the partition of real estate.”
In Milligan v. Poole, 35 Ind. 64, in referring to proceedings in partition, it is said: “Ample provision is made for ascertaining and settling the rights of the parties interested 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. And whether those rights be legal or *665equitable, they are equally within the cognizance and protecting power of the court. “ * * To give validity and effect to a partition, all persons interested should be made parties to the suit. If they are not, their interest will not be affected by the proceeding, but will remain as before.” See, also, Schissel v. Dickson, 129 Ind. 139.
This court, in construing section 18 of the code, supra, in Bittinger v. Bell, 65 Ind. 445, declared that: “The parties who ought to be and must be made defendants, under this section of the code, as we construe it, are the parties in interest adverse to the plaintiff, an interest involved in the issue, and who, of necessity, will be and must be affected by the judgment in the cause. So, also, any person, ‘who is a necessary party to a complete determination or settlement of the questions involved/ must, by the letter of the statute, be made a defendant to the action. These are the rules which govern pleadings in chancery, in relation to necessary parties, and these rules were substantially re-enacted, in our code of practice, as applicable alike to all suits at law as well as in equity, ‘without distinction between law and equity.’ Newcomb v. Horton, 18 Wis. 566; Story, Eq. Plead., chap. 4; Lube, Eq. Plead., chap. 3; Mitford, Plead. 164, and Moak’s Yan Santvoord, Plead. 105”
The question in regard to the necessity of making the wife of a co-tenant a party in an action in partition seems to have been again considered and decided by the supreme court of New York, in the case of Ripple v. Gilborn, 8 Howard 456. The case of Jackson v. Edwards, supra, and the purpose of the statute of 1840, were both referred to and considered by Crippen, J., in delivering the opinion of the court in that appeal. In the course of the opinion in that case, it is said: “The next question in the case, is whether the *666plaintiff’s wife is a necessary party to the action. The statute declares that the widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage. (Title 3, of chap. 1, of part 3, of the R. S., section 1.) By the sixteenth section of the same act it is declared that no act, deed or conveyance, executed or performed by the husband without the assent of his wife, evidenced by her acknowledgment thereof, in the manner required by law, to pass the estate of married women, and no judgment or decree confessed by or recovered against him, and no laches, default, covin or crime of the husband shall prejudice the right of the wife to her dower, or preclude her from the recovery thereof.
“The wife, in equity, has an inchoate right of dower resting upon the contingency of her surviving her husband, and in cases of partition, when the premises can not be divided, and are ordered to be sold, the inchoate right of the wife becomes vested in her, so that she is at once entitled to her equitable portion of the avails of such sale. * * * * I have examined the case in 7 Paige, of Jackson and wife agt. Edwards and others, with much care. The Chancellor in that case has very fully discussed the question as to the rights of the wife in cases of partition, and I am unable to see, according to the law of that case, how the plaintiff can go on with this action without making his wife a party plaintiff. I am satisfied that the act of 1840, (Chap. 177,) in no manner interferes with the question of parties to the action. It only provides for settling the rights of married women, by adopting the same rule suggested by the Chancellor, in the case above cited, for ascertaining the value of the inchoate right of dower of married women in the premises, in cases where a sale is ordered, and of securing to them the *667money, by investment, etc. This act also authorizes a married woman to release her contingent inchoate right of dower to her husband. I have no doubt, that the provisions made by this statute, were induced by the law, as expounded and settled by the Chancellor, in the case of Jackson v. Edwards, above cited. It was argued in January, 1839, and no doubt decided prior to the passage of the act of April 28, 1840. I regard it as a legislative approval and confirmation of the law as expounded by the Chancellor.
“If the plaintiff’s wife is not brought in as a party to the action, I am not aware of any course of practice by which the court is to be informed that he has a wife who is entitled to an inchoate right of dower in the premises. It may be that on an application in behalf of the wife, at any time before the money arising from the sale of said premises, if one should be ordered, is paid over by the purchaser, her interest therein might be protected by an order of the court; probably the same result might be attained on the applications of the purchaser to the court, in order to protect him in his title. Allow that such proceedings might be had, it only goes to show more emphatically the necessity and propriety of bringing in the plaintiff’s wife as a party to the action, in order that the premises shall be freed by the decree and sale of all entanglements with the claim of the plaintiff’s wife, and she at the same time be properly secured in her equitable rights, arising from a sale of said premises.
“It seems to me that the most simple and direct practice, as well as that required by the strict rules of law, is to make all persons parties, who have, by any means or contingency, an interest in the premises.
“Barbour, in his Chancery Practice, directs that whenever there is a married woman having merely an *668inchoate right of dower, it is advisable that she be made a party to the action, especially if a sale will be necessary. (2 Barbour’s Pr. 288.) Whether a sale will be ordered or not is a question that cannot be determined at the commencement of the action. All necessary parties should be joined at the time the suit is brought, and if omitted, the defendant may demur, in case the defect appears upon the face of the complaint, and if not, may appear and object by plea or answer. Baker v. Devereaux, 8 Paige, 513, and also the cases cited to the first point. The plaintiff in this action joined the defendant’s wife as a party thereto, in order that her right of dower might be barred by the proceedings therein and by the judgment of the court; no doubt the same necessity exists for bringing in the plaintiff’s wife and making her a party, and for the same reasons. Whittaker, in his Practice, says that all persons directly or indirectly interested in the corpus of the estate must be made parties, including the wives of parties living, in respect to their inchoate right of dower. (Whittaker’s Pr., 60.) This authority ,seems to be directly in point, and is undoubtedly correct. ■ If a sale of the premises shall be ordered, it is entirely clear that a complete determination of the rights of the parties cannot be had without the plaintiffs’ wife being brought into the case at some period of its prosecution.”
The legislature which enacted our statutes of descent substantially adopted the provisions of section sixteen of the statute of New York, referred to in the opinion of the court in the case from which I have just quoted, and incorporated them into section 2660, supra. In view of this fact, the above decision of Ripple v. Gilborn, supra, placing an interpretation on this section of the New. York statute from which our statute was borrowed, is entitled to much weight in *669the solution of the question here involved. For it is a familiar rule, in general, that where a statute of one state is borrowed from that of another, it will be held by the courts of the borowing state to have the meaning and force given it by the courts of the state from which it was borrowed. City of Valparaiso v. Gardner, 97 Ind. 1, and authorities cited.
The provision of the partition statute of 1852, which authorized the court, in its discretion, to order a sale of the premises, when they were not susceptible of division, is but a recognition to an extent, of the old chancery rule, which permitted courts of equity in proceedings for partition to do equity upon consent of all parties in interest, by ordering a sale of the land in lieu of partition, and dividing the proceeds instead, except the power under the statute does not depend upon the consent of parties. In a suit in chancery for partition the decree was only binding upon those parties who were before the court, and those whom they virtually represented, and the interests of third persons were not affected. In the exercise of equity jurisdiction in cases of partition, the court was tested with extensive power to bring all interested parties before it, in order that complete justice might be attained. Story Eq. Jur. (11th ed.), section 656; Pom. Eq. Jur., section 1390. By no means is it an easy matter to trace accurately the distinction between necessary, and what may be termed, merely as proper parties to an action; each case in a greater or lesser degree must depend upon' the facts and circumstances upon which it rests. We think, however, that it is evident, in view of the provisions of the code relative to parties to an action, and to which the practice in partition suits, by section 626, supra, is required to conform, that in the event a sale of the lands is ordered, the wife of a tenant in common is not only a *670proper, but a necessary party defendant, in order to protect her interest involved, and also that there may be a complete determination of the controversy, and that the decree' and conveyance thereunder may pass a perfect title to the purchaser, and it is the duty of the court, under such circumstances, to cause her to be made a party; and, in the event that she is not, her rights are not barred. This, we think, was the manifest intent of the legislature. We are confirmed in this conclusion, when we consider the fact that this body at the same session, and only a few days prior to the approval of the act of 1852 concerning partition, passed the statute of descents, which embraced section 2660, Burns’ B. S. 1894 (2499, B. S. 1881). There is no reasonable presumption that the legislature intended, in the very teeth of the prohibitory features of this section, that in the exercise of the power granted to the court under the partition statute, to decree a sale of the land, that the presence of the Avives of the tenants as parties might be dispensed with, and still that their inchoate interests therein should be divested and barred. A feature in the Ohio and Missouri cases referred to, was the fact that the statutes of those' states made no provisions for making the wives of the tenants parties to a partition proceeding. The force, therefore, of these decisions, in Aiew of the requirements of the code of 1852, to which I have referred, is materially impaired; and they can not be acepted as controlling.
In Weaver v. Gregg, supra, it was said that the wife was remitted to her share of the proceeds of sale in lieu of her dower. But if she is in no manner a party, or notified- of the pendency of the action, how may she have an opportunity to demand her interest in the proceeds, and thereby protect her rights? When is she entitled to her day in court, and a protection of her right under due process of law?
*671It is virtually asserted in the prevailing opinion of my brother, McCabe, that it would be an idle ceremony to make the wife of a co-tenant a party in partition proceedings, as she could not be heard to oppose neither partition in kind nor the sale of the lands; that she could not defeat a partition is true, but that she is entitled to oppose the sale of the premises by showing that they are susceptible of division is in ' reason and justice, under the laws of this State, undoubtedly her right. She is interested in the part to be set off to her husband, in case a partition in kind is made, and she should, therefore, also have the right, certainly, to be heard in exposing any fraud or inequality in the proceedings affecting the moiety apportioned to her husband. That she had an interest in the subject of the partition — the land sought to be partitioned — is not and cannot be controverted. That in the event it was ordered to be sold, she had an interest in the relief demanded, is equally evident, and a complete determination of the controversy, in this respect, at least, could not be had without her presence. Therefore, under such circumstances, the provisions of the code referred to, required her to be joined as a party.
Under the holding that the wife’s right will be barred by the order of sale to which she is not a party, an opportunity might be presented for two or more husbands, holding valuable property as tenants in common, by acting in concert, to procure, through a partition suit, a sale thereof, without making their wives parties thereto, and the money arising from such sale might be dissipated, or seized bv creditors of the husbands, and the wives of the latter be afforded no notice of such action, or opportunity to protect their interests, if any, in such proceeds.
The case at bar affords a fair illustration of the re-*672salt that might follow, as it appears that the appellee had no knowledge of the partition sale until after the death of her husband. Certainly the legislature did not intend that such rank injustice should result to the wife when it engrafted upon the statute the equitable rule permitting the court to order the sale of the real estate. But, it is claimed by counsel for appellant, that a holding that the wife is not barred by the sale under the circumstances, would result as a hardship upon the purchaser at such sales. In answer to this, it may be said that the original purchaser of the land in question, through whom appellant claims, was bound to know, under the law, what and whose interests he acquired by the sale and conveyance in controversy. He was bound to know that section 2660, supra, denied the right to divest her of her inchoate interest in the land under a decree of sale to which she was not a party. He was bound to know what title passed to him by the commissioner’s deed, as provided by section 21 of the partition statute. With all these presumptions existing against him, he apparently did not investigate the question of title, or make any application to the court to be relieved from his purchase. The court will not compel a Iona fide purchaser to complete his purchase and accept a deed, when it appears that the title to the land will be doubtful and may subject him to a contest to protect it. See Harlan v. Stout, 22 Ind. 488, and the many authorities cited in foot note to Toole v. Toole, 112 N. Y. 333, 2 L. R, A. 465.
When the force and effect of the several statutes to which I have referred are considered, and* the fact that the right of the wife in the real estate of the husband, under the laws of this State, has heretofore been regarded and held by this court as an actual contingent interest therein; that she holds such inter*673ests as a purchaser for value, and that the law favors her in the protection thereof, the conclusion is irresistible, in my opinion, that appellee is not barred by ■ the decree and sale from asserting,her interest in the lands in dispute. Such holding is in harmony with reason, justice, and the laws of our State. She was endowed by the statute with this interest in her husband’s lands for her support and maintenance in the event, she became a widow, and to hold that, under the facts, she is precluded from a recovery, is in direct opposition to the spirit and meaning of the law. The1 language of section 2660, supra, is a complete answer to the contentions of the appellant.
The decision in this case may be said to be sweep-’ ing in its effects, and establishes a precedent that will ultimately serve to plague and worry the court. If the doctrine asserted is sound, then it must follow that when lands of the husband are sold, under an order of sale in a partition action, the wife will virtually have no interest, neither in the realty, after it is sold, nor in the proceeds arising out of the sale of the husband’s moiety, that she can claim; and, in such a case the creditors of the husband would occupy a position that they do not in any other case when the husband’s lands are sold, and where the wife has not been es-topped by her own act and not barred by being a party to a judgment or decree of a court. Such creditors, under this view of the question, would be permitted to assert their right to, and appropriate the entire proceeds of the husband’s interest in payment of his debts, regardless of the rights or claims of his wife.
The act of 1875, section 2669, Burns’ R. g. 1894 (2508, R. S. 1881), in effect provides that when the title of the husband in real estate shall become vested in a purchaser under a judicial sale, where the inchoate *674interest of the wife has not been ordered sold, or barred by virtue of such sale, then and in that event, her said interest shall become absolute and vest in her, in like manner and to the same extent as it would upon the death of the husband. It has been held by this court that a sale of the husband’s lands by a register in bankruptcy, or by an assignee for the benefit of creditors, is a judicial sale within the meaning of this statute. See Roberts v. Shroyer, 68 Ind. 64; McCracken v. Kuhn, 73 Ind. 149; Lawson v. DeBolt, 78 Ind. 563; Hall v. Harrell, 92 Ind. 408.
In view of these decisions, and others of like import on the same point, surely it must be said that sales made since the taking- effect of the act of 1875, supra, under the order of the court in a partition proceeding, would be judicial sales within the meaning of that statute, and, unless the wife was barred by the judgment therein by being a party thereto, her interest would vest and become absolute upon such sale and conveyance; and in the event that it had been barred by the judgment of the court, she being a party thereto, certainly her interest would be shifted or transferred to the proceeds of the sale, and she would have the right to protect it. From this conclusion, I think, there can be no escape, yet the holding in the case at bar, in effect, affirms or establishes a rule to the contrary, and to this extent the laws of the State which give her this inchoate right in the lands of her husband are rendered nugatory.
The judgment ought to be affirmed.