Bowie v. Berry

1 Md. Ch. 452 | New York Court of Chancery | 1849

The Chancellor:

It does not appear when Mr. Bowie died, nor what is the age and condition of health of his widow ; and, therefore, an order fixing the proportion of the money to which she may be entitled in lieu of dower, could not be passed.

The bill prays either for an assignment of dower, or an equivalent therefor in money; but this equivalent it is proposed to regulate by the amount which Berry, the defendant, agreed to give for the land in 1839, which is stated to have been about thirty thousand dollars.

My opinion, however, is, that this is not the true standard. The land may have appreciated or depreciated in value very much, between the purchase by Berry, and the death of the complainant’s husband ; and it is the value of the land at the time of the death, which is to be regarded, and not its value at the time of the alienation, unless its increased value has arisen from the labor and money of the owner.

After examining the authorities upon this question, Chancellor Kent comes to the conclusion, “that the improved value of the land, from which the widow is to be excluded in the assignment of her dower, as against a purchaser from her husband, is, that which has arisen from the actual labor and money of the owner, and not from that which has arisen from extrinsic or general causes.” 4 Kent's Com., 68.

But the answer in this case takes the ground, that as Mr. Bowie had but an equitable title to this land when he sold to the defendant, he is entitled, upon the condition of the bond of conveyance, to give him a clear title, to have the payments made by him to Bowie, and which were applied by the latter to the obtention of the legal title set off or discounted from the complainant’s claim to dower.

If Mr. Bowie, while he held but an equitable title, had sold and transferred that title to the defendant, the claim of dower could not be supported, it having been decided by the Court of Appeals, that if the equitable title is parted with by the husband in his lifetime, the widow shall not be allowed dower. Miller vs. Stump, 3 Gill, 304.

But this was not done; on the contrary, Mr. Bowie, four years after he contracted to sell the land to the defendant, took the deed from his vendors to himself, because the defendant had not then paid the purchase money, a part of which, it is understood, is even yet due.

This is the case, then, of a husband dying seized of the legal title; and, therefore, it would seem that the dower claim cannot be defeated, either directly or indirectly, in the mode proposed by this answer. It is possible a different view might have been taken of the subject in a court of equity, if, during the life of Mr. Bowie, the defendant had put himself in a condition to demand a conveyance of the title, by paying all the purchase money he had contracted to pay.

I am not sure, however, that the value of the thing out of which the dower is claimed, should not be diminished by the amount of the sums paid by the defendant to Mr. Bowie, in his lifetime, and by him applied to the payment of the land; and as the case has not been argued on the part of the defendant, that point will not now be decided; but the case sent to the Auditor, to report such accounts as will enable the court to determine the question hereafter.

[This order was not appealed from.]