On Petition for Rehearing.
Jordan, J.Counsel for appellees, in their brief filed in support of the petition for rehearing, have very elaborately and ably presented their views adverse to the holding in this case at the former hearing, which was to the effect that George Brain, husband of appellant, Catharine Brain, was seized in fee of the real estate in controversy by relation back of the title to him from Gwin, his immediate grantor, when the latter acquired title to the land by conveyance from the canal trustees, and that the inchoate interest given to appellant by the statute attached to the realty by virtue of such seizin on the part of her husband, and, as she was not made a party to the foreclosure of. the mortgage in question, her equity of redemption had not been barred. At the earnest solicitation of appellees’ learned counsel, we have again given the questions involved a careful consideration in the light of the authorities, and are confirmed that the conclusion reached in the original opinion is correct. At the time Miller, who appears to have been the holder of the mortgage executed by George Brain, instituted the action against him, the latter was invested with the equitable title only, the legal title to the lands at the time being, ás we have seen, still in the canal trustees. After the rendition of the judgment in that action, and some eleven days before the purchase of the land by *66Hays at the sheriff’s sale under the foreclosure decree, the canal trustees conveyed the land to Gwin. It is manifest, we think, that whatever legal title Hays, the purchaser at the sheriff’s sale, obtained to the land, came to him under his said purchase, by virtue of the- after-acquired title by Gwin through the conveyance of the canal trustees, which'conveyance, as held, in effect served to transfer the real estate in fee to Erain, the mortgagor, through Gwin, by virtue of the latter’s conveyance of April 1, 1856. It must also follow, perforce of the authorities cited in the original opinion, that when the legal effect or operation of the conveyance by the trustees to Gwin, under the circumstances in the case, is considered, the result must be the same, so far as appellant’s inchoate interest is concerned, as though her husband had been actually invested with the legal title to the land under or by the warranty deed executed by Gwin to him. Counsel for appellees are mistaken in their assertion that appellant acquired her interest in one-third of the land in dispute through her husband. Under section 24-91 R. S. 1881, section 2652 Burns 1894, a wife cannot be said to take the interest given her under its provisions through her husband. She takes it, it is true, through the same title that he does, encumbered with and subject to the same liens, infomities, and liabilities as is his title. Her right or interest in the lands begins with his seizin during coverture, and it attaches as an incident to such seizin, and it cannot be defeated or devested through any charge or conveyance made by him, unless the wife joins therein. Grissom v. Moore, 106 Ind. 296. This inchoate right of the wife, under our statutes, is considered not in the nature of an encumbrance, but as an interest or estate in the land itself, and is unlike that of the right of dower, for there is no reversionary interest in the person who claims through the husband. Bever v. North, 107 Ind. 544. She acquires this interest, not as an heir, but by virtue of her marital rights. Where a husband is seized in fee of lands at any time during his marriage, and his title is devested by the means of *67any encumbrance or conveyance made by him in which his wife did not join, the latter, at his death, under section 2491, supra, is deemed as taking her interest therein as a purchaser for value, for marriage is the highest, consideration known to the law. Richardson v. Schultz, 98 Ind. 429; Bookout v. Bookout, 150 Ind. 63.
It is earnestly insisted by counsel for appellees that at the time the mortgage was foreclosed, George Erain, husband of appellant, was the only person, as they assert, who had any interest in the mortgaged premises, and inasmuch as appellant’s interest had not attached at the time of the foreclosure, and as she claims through her husband, her right to redeem is harred by the foreclosure decree, by reason of his being a party thereto. But, as heretofore said, it is not true that appellant must be held to claim her interest in the land through her husband. Neither does she profess so to claim it. Neither is it true that her husband at that time was the only one interested in the mortgaged premises. The legal title thereto at that time, as we have seen, was in the canal trustees, and they were not made a party to the action. The holder of the mortgage apparently instituted and prosecuted his action to foreclose the same upon the theory that George Erain was the .only necessary or proper party defendant, and it may be said, under the circumstances, that the mortgage was not actually foreclosed against any one, at that time, who was invested with the legal title to the land. Appellant’s husband, at the time of the foreclosure proceedings, for aught appearing to the contrary, under the facts, did have a present right to become actually seized in fee of the land in controversy, and upon such seizin the interest of his wife would thereby attach, and this fact certainly put the wife in a position of having such an interest in the land as would render her!a proper party, at least, to the foreclosure suit, in order that'^she might be bound thereby in the event her husband became actually seized of the land in fee, as he did by vir*68tue of the after-acquired title under the conveyance of the trustees to Grwin.
Surely it cannot be insisted that if the canal trustees, who were not parties to the foreclosure proceedings, had thereafter conveyed the legal title to either appellant or her husband, instead of to Gwin, as they did, that she would be bound by the decree, and her equity of redemption, or other rights in the land, would thereby be entirely cut off and barred. Again, the statute, as we have seen, also gives the surviving wife her interest in all lands in which the husband had an equitable interest at the time of his death. In the event appellant’s husband had died after the foreclosure proceedings, but before his equitable interest in the land had passed from him by the sheriff’s sale, certainly, under such circumstances, she would not have been barred of her rights by the decree of the court to which she was not a party; and to this extent also, at least, she was a proper party to the action instituted to foreclose the mortgage against her husband. Simply making the husband a party, under the circumstances in this case, could not affect the wife in any manner; for the husband in no sense can be said to be her representative in reference to her inchoate interest in his lands. Appellant, as we have seen, does not profess to claim her interest and rights, which she is seeking to maintain in this action, through her deceased husband, but she asserts them by virtue of her marital rights under his seizin through the conveyance in question of the canal trustees which, we may again affirm, bad the effect and operation, in contemplation of law, of placing her, in respect to her inchoate interest, in the same condition as though her husband had obtained the legal title to the land under the warranty deed executed by Grwin to him on April 1, 1856.
We may, however, dismiss this feature of the case, in relation to the effect of the decree upon appellant’s rights in the premises, as she, under her complaint, simply seeks an accounting, in order that it may be ascertained by the court *69what amount is due appellees, and, upon payment thereof, that she may be permitted to redeem one-third of the land in dispute from the mortgage, etc. The effect of our decision at the former hearing was that, under the facts alleged in the complaint, a prima facie case in favor of the rights which she asserted was thereby presented. If, for any reason, appellant is estopped by the foreclosure decree or by the rights of innocent parties, etc., as insisted by appellees, and which are said to enter into the case, all such defenses can be interposed by answer, and, if sufficient, may be made available. Under the code, matters creating an estoppel must be specially pleaded. Center School Township v. State, ex rel., 150 Ind. 168, and cases there cited.
The petition is overruled. All concurring, except Mc-Cabe, J., dissenting.