20 S.C. 550 | S.C. | 1884
The opinion of the court was delivered by
In this case, the petitioner, by proceedings originally instituted in the Court of Probate, and carried thence, by appeal, to the Court of Common Pleas, demanded dower in a certain tract of land of which, as she alleged, her husband had been seized during coverture, and had in his life-time conveyed to the defendant. It seems that the land in question was conveyed by one Shumate to Simeon Hughes and William Bowman (the husband of petitioner); that Hughes and Bowman were partners in a mercantile business ; that the land was bought as a site for a store which was erected thereon, and was paid for with partnership money.
The Probate judge held that the petitioner was entitled to dower in one-half, but not in the other half of the land, and from his decree both parties appealed to the Circuit Court, which affirmed the decree of the Court of Probate. This appeal now comes up from the Circuit Court, in which both parties allege error; the petitioner, because she was not allowed dower in the whole of the land; and the defendant, because there was no right of dower in any portion of the land. •
The conclusion reached by the Circuit judge is so fully sustained by the case of Reed v. Kennedy, 2 Strobh. 67, which is so much like this case as to be almost identical with it, that it is scarcely necessary for us to do more than refer to that case. In that case, as in this, the land was conveyed to two persons who were copartners in a mercantile business, and paid for with the partnership funds. After the dissolution of the partnership the husband of demandant conveyed his interest to his copartner, under whom the defendant claimed, and it was held that the widow was entitled to dower in the one-half of which her deceased husband had been seized. As is said in 1 Washb. Real Prop., Book I., Qhap. VIL, § 2, ¶ 12: “ Whether the widow of a deceased partner shall be entitled to dower in lands purchased and held by the partners, has been frequently discussed, and it is not easy to reconcile all the cases, especially the early ones, with the law as now understood, nor will it be attempted here. Though it may sometimes depend upon the character which the parties intended to give to lands held by them for their joint and mutual benefit, yet it may be laid down as a general proposition, that, if real estate is purchased by two or more parties, and paid for out of partnership funds, and held for partnership purposes, it will be regarded in law as held by the several partners as tenants in common, yet, in equity, it
The remaining inquiry is, whether the fact that the husband had bought and paid for the interest of the other joint owner, but had taken no deed therefor, entitles her to claim dower in the other half also. We do not think so. Seizin of the husband during coverture is essential, and here the husband was never seized. He at most only had a right, in equity, to compel a conveyance from his joint owner for his interest, and this he never did, and never even took any steps towards doing. On the contrary, he declined to take a conveyance when offered, for the reason, doubtless, that he was about to sell to defendant, and it would be more convenient and less expensive to make one, rather than two deeds. Under these circumstances, we do not see that the husband ever had any such seizin, even in equity, as would entitle his widow to claim dower in the half which was never conveyed to him, but which, at his instance, was conveyed directly to the defendant. See the cases cited in 1 Waslib. Real Prop., Booh I., Chap. VIL, § 3, ¶ 13 and 14.
The judgment of this court is that the judgment of the Circuit Court be affirmed.
