delivered the opinion of the court.
It appears from the record that in 1870 Thomas W. Chap
Thomas W. Chapman, the vendor, married in 1878, without having made his vendee a deed. After his marriage he executed and delivered to Thomas A. Chapman a deed conveying him this 560 acres of land. In this conveyance his wife refused to unite. Thomas W. Chapman, the vendor having died, since making the deed, his widow now demands dower in the land conveyed to Thomas A. Chapman.
Irrespective of statute, a widow has no dower in lands sold by her husband prior to his marriage, although the husband may have died without conveying title ; for, while he has the legal title, yet he is not beneficially seised during the coverture, as against the vendee. 2 Minor’s Inst. 147; Waller v. Waller, 33 Gratt. 83; Lomax, Vol. I., (ed. 1839), p. 106, ch. IV., sec. 3.
It was contended, however, that Thomas A. Chapman was in default in the payment of the balance of the purchase money, and that this gave his vendor a right of action to recover the land; and therefore that Mrs. Chapman is entitled to dower therein by virtue of sec. 2268 of the Code, which provides that “ When a husband, or any one to his use, shall have been entitled to a right of entry, or action in any land, and his widow would have been entitled to dower out of the same if the husband or such other had recovered possession thereof, she shall be entitled to such dower although there shall have been no such recovery of possession.”
This proposition is based upon an erroneous assumption of facts. There is not one word in the record tending to show that Thomas A. Chapman was in default in the payment of his purchase money. If anything is to be inferred from the facts appearing in the record, the contrary is true. His vendor
Section 2268 has no application to a case like this. It is clear that the claim of the appellant to dower in this land is unfounded, and the Circuit Court having so held, its decree .must be affirmed.
Affirmed.