25 Gratt. 587 | Va. | 1874
delivered the opinion of the court..
The wife’s right of dower is a valuable interest, which she cannot be compelled to resign, and which the law very carefully protects from the control of her husband. And therefore the release of her dower is held to be a good consideration for a settlement, and is good against creditors of the husband to the extent of the value of the dower released.
Courts of equity are always liberal towards the wife in supporting such settlements, when fairly made, and will not interfere in favor of creditors, unless the estimated value of the dower released be shown to be excessive. When found to be excessive, courts of ■equity will generally not set aside the deed of settlement as null and void, but will reduce the amount settled upon the wife to a fair and just compensation for the interest she may have parted with. Harvey v. Alexander, 1 Rand. 219; Quarles v. Lacy, 4 Munf. 251; Sykes v. Chadwick, 18 Wall. U. S. R. 141.
Let us now apply these principles to the case before us. Bratton Davis being heavily indebted to numerpus creditors, and being the owner of large and valuable real estate, executed two deeds, each bearing date
This deed had this further provision: “In order to ascertain the amount of the debts, the sum due to each creditor, said trustees may convene all the creditors, by publication, before a commissioner, who shall determine in each case how much is justly due.”
The other deed, executed the same day, after reciting “that whereas said Braxton Davis is now advanced in life and encumbered by many outstanding debts, which he wishes to secure by deed of trust on various tracts of valuable land, in all of which the said Agnes M. Davis has a right of dower; and whereas it is desirable that the said Agnes M. Davis should unite in the deed of trust so as to secure a perfect title to the purchasers under said trust deed; and whereas she has agreed to unite in said deed upon the condition that said Braxton Davis shall convey to a trustee for the benefit of herself and her children by her marriage with said Davis, other lands and personal property of a value equivalent to her right of dower in the whole estate of said Braxton Davis,” &c., the grantor conveyed to John B. Baldwin
The creditors were no parties to these deeds, nor is. it pretended that they were represented by the trustees in the first named deed, or had any notice of it until it was admitted to record.
But in this connection may be noticed the position taken by the learned counsel in his petition of appeal,, and urged in argument here. Admitting that the creditors were not present, consenting to this disposition of his property by Davis, the grantor, and that the trustees did not represent them, he insists that they accepted and ratified this arrangement made for-their benefit, by proving their respective claims before the commissioner appointed by the trustees, under the-provision of the deed before referred to, and that having thus accepted the provisions of the deed thej cannot now claim against it. It is sufficient to remark,, that the record in this case does not show that any commissioner was ever appointed to audit their claims,, though it is asserted by the counsel for the appellant.
The case, unencumbered by this pretension of the appellant, presents one single question as to whether the settlement made upon the wife is excessive, or,
He conveyed three of these tracts to trustees for the benefit of his creditors, to wit: the “Turk Place,” containing five hundred acres, the Craig tract, containing about five hundred acres, and the Coiner tract, containing over two hundred acres. These three tracts are estimated by the commissioner (and we think it a fair estimate upon the evidence) at the aggregate sum of §35,675.
Two tracts of land were settled by the grantor upon his wife, upon consideration that she should relinquish her right of dower in the whole. These were the Porterfield tract, containing three hundred and eleven acres, and valued by the commissioner at $20,860, and the Rader tract, containing one hundred and ten acres, valued by the commissioner at $7,471, aggregating $28,331, being more than two-thirds of the amount in value of the lands conveyed to his creditors.
The court is of opinion that the settlement of this amount upon the wife was grossly in excess of a fair and just compensation for her dower rights in the whole real estate of her husband, and that there is no error in the decree of the Circuit court in so declaring.
But the court is further of opinion that the Circuit court ought not to have set aside the settlement made in favor of Mrs. Davis without first giving to her the election either to accept a reasonable amount in lieu of her right of dower, or to have laid off to her in kind in the land not sold by the trustees, her dower in the whole real estate of her husband.
In the case before us we must regard the two deeds executed and recorded on the same day, as one and the same transaction; and so regarding them, it is apparent that it was agreed between the said Braxton Davis and the said Agnes M. Davis that the conveyance for her benefit of the Porterfield tract and the Bader tract would be a fair equivalent for her right of dower in his whole real estate; and that she united in ■the deed to the trustees upon condition that these two tracts of land should be settled on her. This was the consideration upon which she parted with her interest in the three valuable tracts of land conveyed by her husband for the benefit of his creditors. One of the tracts settled upon her -was the homestead,' which, it is fair to presume, had in her eyes peculiar valué. The presumption is she would never have united in the deed but for this specific arrangement for her. At any rate, this was the specific consideration upon which she eseeuted the deed. She was parting with valuable interests. Her husband was advanced in years; she was young. She had the right of dower in five valuable estates. She had the right to demand a settlement to compensate her for the relinquishment of her rights.
We'are of opinion, however, that Mi's. Davis, under the circumstances of this case, was entitled to be restored, as far as possible, to the same position and invested with the same legal rights she had before she united in the deed with her husband; and the husband being dead, she may, if she so elects, claim her right to dower in the whole real estate of her husband;, the value either to be commuted in money or laid off in kind, in the lands not sold by the trustees. This can be done without prejudice to the rights of creditors or purchasers, as the value of her dower in each of the five tracts of which her husband died seized, may now be laid off in the lands still unsold, to wit, the Porterfield and Bader tracts.
The court is therefore of opinion that the decree of the Circuit court be reversed, and the cause be remanded to said Cii’cuit court to be proceeded in in accordance with the principles herein declared.
The decree was as follows:
The court is of opinion, for- reasons stated in writing and filed .with the record, that there is no error in the decree of the said Circuit court in declaring the settlement made upon the appellant, Mrs. Agnes.
Decree reversed.