Land ownership and the ladies in 1846 Indiana — what’s the law?

Got a question from reader Laurie Huey that’s just too good to try to paraphrase. Here’s her version of the fact pattern:

Shortly after Miss Ancestor married Mr. Big Mistake, Mr. Ancestor (Miss Ancestor’s father) traveled to an Indiana land office and purchased a tract of land in his daughter’s name. Mrs. Big Mistake and her family lived on and worked this land until sixteen years and six children later, there was a nasty divorce and an alienation of love and affection lawsuit instigated by Mr. Big Mistake. He was awarded his divorce, the children, and all the property with nary one word heard from her. Within one year or two, the ex Mrs. Big Mistake reappears and sues to recover her land (insert here big, complicated, and devious story of how Mr. Big Mistake’s brother now owned her land unbeknownst to her up until this point). The case is apparently settled out of court with the result that ex Mrs. Big Mistake’s six minor children become owners of the land. Given that the land was purchased in 1832, the divorce was in 1846, and both took place in Indiana where it seems married women had little in the way of property rights at this time, why might have ex Mrs. Big Mistake believed the land belong to her and her alone? Am I missing something in Indiana’s laws? Or would there been some type of legal agreement between the parties before Mr. Ancestor purchased the land in his married daughter’s name? Or what?

Oooooh… doesn’t it make you want to thwack Mr. Big Mistake upside the head? Love it.

Could the Mrs. have owned land in 1846 Indiana?

Okay, on to the answer. Yep, there is “something in Indiana’s laws” that’s being missed here. It’s the concept, drawn from the law of equity, of the “separate estate.”

To understand that completely, let’s start with a history lesson. Early English law was stuffy and rigid and rule-bound. If you didn’t dot an “i” or cross a “t” (legally, of course), you could easily lose in the law courts. But when you lost in the law courts, you didn’t pick up your marbles and go home; you threw yourself on the mercy of the King, screaming (politely): “It ain’t fair!”
And when enough people were screaming at him, the King started screaming, “Somebody else deal with this mess!”

That somebody was the Chancellor, and a new body of law called equity grew up in what ended up as chancery courts. That body of law wasn’t so rigid and rule-bound, and it often worked to make things fair, or at least more fair, mostly by offering specific types of remedies that you couldn’t get in the law courts (like injunctions). That caused some, uh, er, shall we say, tensions with the law courts¹ (can I say “pissing contests” in an online blog?), but, well before the 1840s, equity had its own strong place in Indiana state law.²

And one of the rules of equity in force in Indiana at that time was that property a married woman received, either before the marriage or by gift or inheritance during the marriage, was part of her separate estate.³ As explained by the Indiana Supreme Court in Scott v. Scott, 13 Ind. 196, 200 (1859), “a married woman might hold property to her separate use, independently, and beyond the control of her husband, without the power of alienation.”⁴ And, the Scott Court added, Indiana statutes incorporated “this equitable doctrine in respect to all her property both real and personal, held by her at the time of her marriage, or acquired during coverture,⁵ in the manner specified in the statute, leaving it hers in all respects as fully as if she had remained unmarried, requiring only the assent of the husband to an alienation.”⁶ In short, Mama needed Papa’s permission to sell it, but in every other way, the property was hers and hers alone.

Scott wasn’t the first Indiana case to protect a married woman’s right to her separate estate, and it wouldn’t be the last either. In Barnett v. Goings, 8 Blackf. 284 (Ind. 1846), a husband had sold his wife’s land for his own benefit, promising to buy other land for her of equal value. The Court held the land later purchased was hers, not his, and couldn’t be subject to his debts. In Gatling v. Rodman, 6 Ind. 232, 235 (Ind. 1855), in a land dispute over ownership of town lots, the Court noted that property received by the wife as an inheritance from her father was “her separate estate.” In Bristor v. Bristor, 93 Ind. 281, 282 (Ind. 1883), a wife had received land in December 1846 by inheritance from her father but the deed was issued to her and her husband. The Court held that “the evidence warranted a finding that the lot was the wife’s separate property.”

Would the rule have been any different in a divorce? Nope. As recently as 1977, an Indiana appeals court judge noted that long before “the present dissolution act⁷ came into existence, it was customary to completely exclude from consideration the separate property of each spouse.” In re Marriage of Osborne, 174 Ind. App. 599, 610 (Ind. Ct. App. 1977) (Staton, P.J., concurring).

So the concept of the separate estate was clearly part of the statutory law in Indiana by the time Mr. Big Mistake made his own big mistake and tried to oust his wife of her land in the divorce. The only way out for him and his conniving brother at that point was to settle with the ex, and giving the land to the kids who’d lived there and worked it may well have been what ex-Mrs. Big Mistake was after all along.

Great question, Laurie!

PS to all: Have you written your letter to your Congressional Representative on the SSDI yet? If you need help, there are sample letters (geared towards forensic genealogists but useful for all of us) here.

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