Baer v. Ballingall, 61 P. 852

Baer v. Ballingall

61 P. 852 | Or. | 1900

Mr. Justice Moore,

after stating the facts, delivered the opinion of the court.

The decree is predicated upon the theory that Mrs. Ballingall’s deed of her dower right was intended as a mortgage to secure the payment of the sum of $1,000 which she owed Rosa E. Robinson and Davis Wilcox, and that such interest was conveyed to them ip trust for Seth Hart, to whom it was to be conveyed when he became twenty-one years old, upon executing to them, in payment thereof, a deed for two hundred acres of land, the title to which he secured from his grandfather. The answer does not allege that Mrs. Ballingall’s deed was intended by her as a conveyance of her dower interest in trust for her son, and, if it had been so averred, we think the testimony was insufficient to warrant a finding to that effect. Seth Hart, in testifying with respect to the agreement entered into with his mother concerning the conveyance of her dower interest and his payment of her debts, was asked the following question: “What was the occasion of making that agreement?” and said : ‘ The occasion was that I wanted to be secure for paying this debt.” “Q,. Isn’t it a fact that your mother secured the payment of these debts by giving her deed to her dower interest in the land described? A. She secured me so I would sign my deed. Q,. Then, in other words, you were paying her debts? A. Yes, sir. .Q. What was the consideration, — what were you paying her debts for? What advantage did you get out of it? A. The advantage was, I would be secured for paying her debts.” We think this testimony clearly shows that Mrs. Ballingall and her son intended that, when he paid her debts to Mrs. Robinson and Mr. Wilcox, their deed, which was in fact a mortgage, should be assigned to him as security therefor.

1. It is argued by plaintiff’s counsel that Seth Hart *420was jointly liable with his mother to-Mrs. Robinson and to Mr. Wilcox, and that when he paid their demands, and secured a conveyance of said dower interest, the mortgage was thereby satisfied. Mrs. Robinson’s demand was evidenced by a promissory note executed by Mr. and Mrs. Ballingall, and assigned to her; and notwithstanding Seth Hai’t, when he agreed to pay his mother’s debt, about December 18, 1896, was only nineteen years old, which fact was well known to all the parties, he, to signify his willingness to keep his engagements, appended his name to said note, and also executed to Mrs. Robinson and Mr. Wilcox a deed purporting to convey thh two •hundred acres of land of which he was seised, in pursuance of which the grantees therein immediately took, and thereafter continuously held, possession thereof. His signature affixed to his mother’s note was only an evidence of his good faith that he would pay Mrs. Robinson the amount due thereon and take an assignment thereof. This was the consideration for his signature, and, having satisfied his agreement by executing a confirmatory deed after he became twenty-one years old, he was entitled to be subrogated to the rights of Mrs. Robinson, and to hold the note and security which his mother had given her. The claim of Davis Wilcox was founded on an account for groceries and supplies sold to Mrs. Ballingall, and used by her in supporting her family, for which her son Seth, then a minor, was not liable, but, having paid for them after attaining Jbds majority, he is entitled to hold the security which his mother gave Wilcox therefor. Believing, as we do, that' the conveyance of the dower interest was intended as a security for the sum of $1,000 when held by Seth Hart, and that Mrs. Ballingall had an equity of redemption in the premises which, in equity, should be subject to the lien of plaintiff’s judgment, the mortgage given by her, and equitably assigned to her *421said sou, will be foreclosed, and he will be entitled to receive, upon a sale of her dower right therein, the sum of $1,000, with interest thereon from December 18,1896, the time when Mrs. Robinson and Mr. Wilcox took possession of his land under the original deed thereof. The complaint having alleged that Mrs. Ballingall occupied all the land subject to her dower, her son Seth is not chargeable with any rent arising therefrom.

2. This brings us to a consideration of the mode of enforcing the decree. The rule is well settled that, unless otherwise regulated by statute, a mere right of dower before an assignment thereof to the dowress is only a chose in action, and not such an interest or estate in real property as can be levied upon and sold under an execution against her property : 4 Kent, Comm. *61; 1 Washburn, Real Prop. *251; Leonard v. Grant, 8 Or. 276 ; Rayner v. Lee, 20 Mich. 384; Nason v. Allen, 5 Me. (5 Greenl.) 479 ; Blain v. Harrison, 11 Ill. 384; Summers v. Babb, 13 Ill. 483 ; Gooch v. Atkins, 14 Mass. 878 ; Shield’s Heirs v. Batts, 5 J. J. Marsh. 12; Waller v. Mardus, 29 Mo. 25 ; Petty v. Malier, 15 B. Mon. 591; Torrey v. Minor, 1 Smedes & M. Ch. 489.

3. In Tompkins v. Fonda, 4 Paige, *448, a judgment having been rendered against a widow, whose only property consisted of an unassigned dower interest in a farm of which her husband died seised, and of which she was in possession with his heirs, the judgment creditor instituted a suit for the appointment of a receiver to assign her dower, and the relief prayed for was granted. Mr. Chancellor Walworth, in speaking of the widow’s retaining possession of the premises subject to her dower, without demanding an assignment thereof, thus defeating the enforcement of a judgment, said : “ She has no right, therefore, in conscience or in equity, to'deprive her creditors of the benefit of her right of dower for the *422satisfaction of their debts, by continuing in possession with the heirs, and neglecting to ask for a formal assignment, which assignment, and entry under it, would enable the creditors to reach it by execution. The right of dower of the defendant in this case is such an interest as may be reached by the aid of this court, and applied to the satisfaction of the complainant’s judgment.” At common law, the heir or tenant of the freehold possessed the power, and it was his duty, to assign the widow’s dower, but, if he neglected or refused to do so within the period of quarantine, she could maintain an action at law against him to determine her right, and to recover damages for withholding her dower ; and, if she recovered judgment therein, a writ of seisin was issue thereon, in pursuance of which the sheriff, after notifying the. adverse parties, admeasured her dower by metes and bounds : 7 Enc. Pl. & Prac. 169. In the reign of Elizabeth, however, courts of equity began to assume jurisdiction in aid of the common law courts in enforcing rights of dower : Pomeroy, Eq. Jur. § 1380 ; 2 Scribner, Dower (2 ed.), 145. The auxiliary jurisdiction thus originally undertaken has expanded until it is now the general rule in the United States that courts of equity exercise concurrent jurisdiction with courts of law in admeasuring dower in legal estates: 10 Am. & Eng. Enc. Law (2 ed.), 173; 1 Story, Eq. Jur. § 624; Brooks v. Woods, 40 Ala. 538 ; Herbert v. Wren, 11 U. S. (7 Cranch), 370 ; Powell v. Monson & B. Mfg. Co. 3 Mason, 347 (Fed. Cas. No. 11,356).

4. The legislative assembly has invested the county courts of this state with power to admeasure dower, when the widow’s right thereto is not disputed (Hill’s Ann. Laws, § 2961); but the statute conferring such authority does not in express words deprive a court of equity of its jurisdiction over the subject-matter, and, *423this being so, such power remains in the court of equity unaffected by the statute (Owen v. Slatter, 26 Ala. 547, 62 Am. Dec. 745). In that case Mr. Chief Justice Chilton, in speaking of the power of a court of equity to admeasure dower, notwithstanding a statute of Alabama conferring authority on the probate courts of that state to do so, says : “The rule is that, although the statute may confer jurisdiction upon another court over subject-matter of which the chancery court had jurisdiction, the jurisdiction of the latter court remains unimpaired unless, by the language of the statute, they are forbidden to proceed in such cases.” See, also, upon this subject, Phipps v. Kelly, 12 Or. 213 (6 Pac. 707); Fleischner v. Citizens Invest. Co. 25 Or. 119 (35 Pac. 174).

5. In Strong v. Clem, 12 Ind. 37 (74 Am. Dec. 200) , it was held that a widow’s dower interest in the real property of her deceased husband was assignable, and that the right, under the statute of Indiana, might be enforced by the assignee in his own name. Mr. Justice Perkins, speaking for the court in deciding the case, says : “ The first question arising in this case is whether a dower interest accruing to the widow in the real estate of her deceased husband, by virtue of the marriage, is assignable ; and we think it is. Upon the death of the husband, the previous inchoate right of the wife becomes consummate, — a vested right; lying, it is true, in action, but still vested. It is a right, a chose in action, arising, not out of tort, but contract. Such rights of action and such interests were assignable in equity, at common law, so as to enable the assignee to recover upon them in a suit in his own name in chancery, but not at law. The assignment transferred the equitable, not the legal, title. * * * This right of the widow, then, being equitably assignable, may be enforced, under our present code, in the name of the assignee ; for, while our statute may *424not have enlarged the common-law right as to equitable assignments, it has invested the equitable assignee with the right to sue in his own name, as he might formerly in chancery.” So, too, in Payne v. Becker, 87 N. Y. 153, it is held that the dower interest which a widow has in lands of which her deceased husband had been seised, although not admeasured, is assignable as a right in action, and is liable in equity for her debts. Mr. Justice Daneorth, in deciding the case, says : “It must now be deemed settled that, upon the death of her husband, a widow has an absolute right to dower in the lands of which he had been seised, and that this right or interest, although resting in action, is liable in equity for her debts. In the cases above cited (Tompkins v. Fonda, 4 Paige, *448, and Stewart v. McMartin, 5 Barb, 438), the action for its admeasurement was required to be brought in the widow’s name, but, since the code, that cannot be necessary.”

6. Mr. Justice Scott, in Waller v. Mardus, 29 Mo. 25, in speaking of the necessity of admeasuring dower before the widow’s right to the premises is sold, says : “If the dower interest is permitted to be sold under execution before it is assigned, and the purchaser shall be compelled to go to law in order to have it allotted to him, the uncertainty whether it would ever be assigned would inevitably cause a diminution of price, which would not occur if the dower was assigned before the sale took place. To sell the right of dower at public auction, and then have it assigned, the purchaser taking the risk whether it will be assigned or not, would generally cause a sacrifice of it. The creditor should have the dower actually assigned before it is sold.”

It is apparent, therefore, that Mrs. Ballingall’s dower interest in the real property of which her former husband died seised should be assigned before it is sold, in *425order that a reasonable sum may be bid therefor, and, this being so, the cause will be remanded to the court below with directions to appoint, upon notice to the adverse parties (Hill’s Ann. Laws, § 381), three discreet and disinterested persons, authorizing,and requiring them to set off by metes and bounds, to the use of the assignee of Ada J. Ballingall, during her natural life, one-third part of the lands described in the complaint, that being the interest to which she was entitled upon the death of her former husband (Hill’s Ann. Laws, § 2954), and, having done so, that her interest in the premises*so admeasured be sold under this decree, as upon execution, and from the money arising therefrom there be paid — first, the expense of such sale and the costs incurred in this court; second, the amount so decreed to the defendant Seth Hart; third, the amount of plaintiff’s judgment; and, fourth, the remainder, if any, to Mrs. Ballingall. If it shall appear, however, to the satisfaction of the court, from the report of the referees or otherwise, that said dower interest cannot be set off by metes and bounds without injury to the estate and great prejudice to the owners, then to order a sale of the whole premises, and apply the money arising therefrom to the costs of such sale, and from the remainder to set off to the account of Mrs. Ballingall the value of her dower, estimated upon her life, at the time of such sale, upon the principles for ascertaining the present value of life annuities (2 Scribner, Dower [2 ed.], 171, 653, et seq.), and from the sum so set off to her to pay the several sums to the parties in the order hereinbefore stated ; the portion of the sum realized from the sale of said real property not set apart to the account of Mrs. Ballingall, to be paid to the heirs of Lewis Hart, or to those entitled to the same. The decree will therefore be reversed, and a decree entered here as indicated. Reversed.