41 W. Va. 706 | W. Va. | 1896
Ona Blair filed her bill on the first Monday in May, 1891, at rules then held for the Circuit Court of Logan county, against Moses Mounts, suing by her next friend, Joseph 5. Blair, in which she claims to be entitled to dower in a tract of land containing one hundred and thirty eight acres, as the widow" of S. S. Jackson, deceased.
She states in her bill that the said S. S. Jackson sold and conveyed to the defendant, Moses Mounts, said tract of
On the 26th day of April, 1892, the said Ona Blair, having arrived at the age of twenty one years, file'd her amended bill, in which she alleges that her deceased husband, S. S. Jackson, was in his lifetime possessed in fee, but not seised, of a certain tract of land containing two hundred and twenty five acres, situated in Logan county, W. Va., on Island creek, the legal title to which was then vested in one Samuel Jackson; that said tract of land was sold by said S. S. Jackson, in his lifetime, to the defendant, Moses Mounts, and was conveyed to said Mounts by Samuel Jackson, and a copy of the deed for same is filed, which describes the property. Plaintiff claims that she is entitled to dower in said last named tract of land, and asks that her dower therein may be assigned her, and that, having arrived at the age of twenty one years, she may be allowed to prosecute her suit in her own name.
The defendant, Moses Mounts, filed a demurrer to the plaintiff’s original bill, which was overruled, and thereupon said defendant tendered and asked leave to file his answer to the plaintiff’s original bill, to the filing of which the plaintiff objected. The court overruled the objection, and permitted the answer to be filed, and the plaintiff excepted in writing, which exceptions were considered by the court and overruled, and the plaintiff replied generally.
The defendant, in his answer, avers and charges that he paid and discharged liens and incumbrances and purchase money against said lands, setting forth the respective amounts and the parties to whom paid; that said liens and
The cause was referred to a commissioner to ascertain the amount of said liens against the lands of said S. S. Jackson at the date of his deed to defendant, their nature and amount, which of said liens were created before the marriage of plaintiff to S. S. Jackson and which were created thereafter, what sum or sums had been paid upon said liens or either of them, to whom and by whom paid, and how and when the said payments were made, what lands said S. S. Jackson, deceased, was seised of as an estate of inheritance at any time during coverture with the plaintiff, Ona Blair, whether the title thereto was legal or equitable; showing the number of acres, location, and value thereof, and the nature of the evidence of his title thereto, the value of the rents, issues, and profits of the real estate mentioned in the bill and proceedings from the date of the death of S.- S. Jackson until the commencement of this suit, the
In response to these requirements, the commissioner, on the 25th day of April, 1894, reported that at the date of the deed from S. S. Jackson to the defendant, Moses Mounts, there were no liens existing against said lands; that during his coverture with the plaintiff the said S. S. Jackson was seised and possessed of the legal title in fee to a tract of one hundred and thirty eight and five tenths acres of land situated at the forks of Island creek in said county, and of the equitable title in fee to a tract of two hundred and six and five tenths acres adjoining said one hundred and thirty eight and five tenths acre-tract; that four hundred and fifty dollars would be a fair annual rental value of said lands; that there were numerous liens against said lands at the date of the title bond executed by S. S. Jackson to the defendant, Mounts, which are set forth aud described in a statement filed with said report, all of which liens were valid and subsisting at the date of the marriage of the plaintiff to S. S. Jackson; and that the greater part of said liens were satisfied by the defendant, Mounts, he applying four thousand, one hundred and forty four dollars and twenty five cents of the purchase money thereto, and that said Mounts paid to said J. M. Jackson the sum of five hundred dollars for which he does not give said Mounts credit, as he was of opinion that the same in no wise constituted a lien upon the real estate in controversy.
The defendant, Mos» s Mounts, excepted to so much of said report as found that the amount paid to J. M. Jackson was not a charge against the lands in controversy in the hands of S. S. Jackson, and paramount to plaintiff’s dower rights. Oua Blair also excepted to said commissioner’s report: (1) Because said report is not responsive to the decree of reference, and fails to embrace matters necessary to be ascertained before a decree can be made in the cause, and no decree can be made upon said report which will dispose of the entire matter of controversy. (2) The said report shows the sum of four thonsand, one
Depositions were taken before the commissioner, and on the 1st day of September, 1894, the cause was heard, and the court, in its decree, overruled the exceptions to the commissioner’s report taken by the defendant, and sustained the exceptions taken by the plaintiff to said report so far as the same ascertained any liens or incumbrances upon the lands mentioned in the plaintiff’s bill and amended bill as being paramount to plaintiff’s claim of dower, and decreed that the plaintiff was entitled, as tenant in dower, to the use of one-third of the real estate in the plaintiff’s bills mentioned, notwithstanding her joinder in the deed for said lands to the defendant; and, the defendant in his answer electing to pay a sum in gross in lieu of dower in kind, as he has the right to do, and it appearing that the plaintiff was twenty one years of age at the time of the filing of her amended bill, the filing of which is taken as her first demand on the defendant for her dower in said lands, and it appearing to the court that the value of said lands at the time of the alienation thereof by her deceased husband was four thousand and five hundred dollars, and that the gross sum to which she was entitled was one thousand, one hundred and nine dollars and sixty one cents, decreed said amount to plaintiff, with interest and costs, in full satisfaction and discharge of her dower in said real estate; and from this decree said Moses Mounts appealed to this Court.
It is next claim d that it was error to overrule the exceptions of the defendant to the commissioner’s report. Said commissioner finds and reports that at the date of the deed from S. S. Jackson to the defendant, Moses Mounts, there were no liens existing against said lands; that during his coverture with plaintiff said S. S. Jackson was seised and possessed of the legal title in fee to a tract of one hundred and thirty eight and five-tenths acres of land situated at the forks of Island creek, in Logan county, and of the equitable title in fee to a tract of two hundred and six and five-tenths acres adjoining the first named tract; that at the date of the title bond executed by said S. S. Jackson to the defendant, Mounts, there were a number of liens against said land; which were valid and subsisting liens at the date of the marriage of the plaintiff to S. S. Jackson; that the greater part of said liens were satisfied by the defendant, Mounts, he applying thereto four thous- and, one hundred and forty four dollars and twenty five cents of the purchase money for said lands, and paying to J. M. Jackson five hundred dollars, which S. S. Jackson was to pay in satisfaction of a charge on the land for the support of said J. M. Jackson; and J. M. Jackson says in his deposition there was also a purchase-money lien of four hundred and thirty dollars due from S. S. Jackson to Samuel Jackson for the land on the north side of the creek,
Now it is claimed by the plaintiff that by reason of the fact that these liens had been paid off by the defendant, Moses Mounts, previous to the conveyance made by S. S. Jackson and J. M. Jackson to said Mounts, she is entitled to dower in the lands mentioned in the original and amended bills. Can this contention be. sustained ? Does the fact that these liens were paid off and discharged by Moses Mounts with the purchase money he had contracted to pay for said land, under the circumstances of this case, give the plaintiff precedence over him, and a right to dower in the land which she did not possess previous to the payment of said liens? Or will equity, under the circumstances, sub-rogate the defendant, Mounts, to the rights of the parties who held said liens?
Sheldon, in his valuable work on Subrogation (on page 3, § ’2) in speaking of subrogation, says: “It is a legal fiction, by force of which an obligation extinguished by a payment made by a third person is treated as still subsisting for the benefit of this third person, who is thus substituted to the rights, remedies, and securities of another. The party who is subrogated is regarded as entitled to the same rights, and, indeed, as constituting one and the same person, with the creditor whom he succeeds.” And in section 3, under the head, “Who will be Subrogated,” the same author says: “Subrogation, as a matter of right, independently of agreement, takes place for the benefit of insurers; of one who, being himself a creditor, has satisfied the lien of a prior creditor; of a purchaser who has extinguished an incumbrance upon the estate which he has pur
Looking, then, at the entire record in the light of these authorities, my conclusion is that the Circuit Court erred in holding that the plaintiff' was entitled to dower in said tracts of land, or that she was entitled to a gross sum in lieu ofher dower out of the purchase money paid by Moses Mounts for said lands; and the decree complained of must be reversed, and the bill dismissed with costs.