Page:Federal Reporter, 1st Series, Volume 2.djvu/211

 204 FEDEBAIi BBPOBTEB. �ever had the right under the certificate to a perfect title to the land from the state. �The contention on the part of the wife is that by virtue of the act of 1875 her right became eonsummated, the property having been sold under a judicial sale, and that is the ques- tion involved in the case. I think, under the general law of this state, that she is entitled to one-third of the interest which her husband had in this property at the time of thia judicial sale, precisely as thougb he had died. And in this respect I differ from the district judge. �What does the language mean ? "In ail cases of judicial sales of real property in which any married woman has an inchoate interest by virtue of her marriage." The district court thdught the term "inchoate" was one applicable to a case where the husband had an absolute title, a complete seizin, in the land, and that it did not apply to a case where there was merely an equitable interest, because in the one case the right of the wife could not be divested without her consent, and in the other it was in the power of the husband at any time to deprive her of her right ; the language of the statute being express that she is only vested with the right to an equitable estate which her husband may own at the time of his death. But I am inclined to think the term is applica- • ble to both kinds of estate — as well to the equitable interest as to the absolute interest in fee simple. Does it cease to be an inchoate interest simply because the husband has the power of disposition over the land ? I think not. It seems to me that where a married man has an equitable interest merely in land, that under the general law of this state, and within the meaning of this particular statute, it may be truly said that the wife has an inchoate interest in the land by virtue of her marriage, because if the husband retains that interest up to the time of his death the inchoate right becomes eonsum- mated. The only qualification is that he can deprive her of the right by disposing of the land. �Now, the statute of 1875 intended to place the rights of married women upon the same footing, in case of a judicial sale, as if the husband had died. An inchoate interest meana ����