Fisher v. Johnson

5 Ind. 492 | Ind. | 1854

Perkins, J.

William H. Johnson and Margaret, his wife, (late Margaret Underwood), filed their petition in the Parke Circuit Court, setting forth that said Margaret was late the wife of John Underwood, deceased; that said John, during the coverture, was the owner of certain real estate, describing it, and that it was conveyed to one Thomas Melvin, now deceased, whose hens axe in possession, and from whom dower has been demanded. The petition avers that said Margaret did not join in the deed to said Melvin. The defendants pleaded, that “the said Thomas Melvin paid the original purchase-money to one Goldsmith Coffin, from whom the said John Underwood purchased the said lands and tenements in said petition mentioned and described, and said Underwood conveyed the same to said Melvin and his heñs in fee simple, in consideration of the said purchase-money so advanced to said Coffin as aforesaid; and that the said purchase-money was not paid by the said John Underwood,, or any part thereof; and that the said John Underwood never had, at any time during his life, any manner of title whatever to the said lands and tenements, except that derived from the said Coffin."

A general demurrer was sustained to this plea, and full dower given to the petitioner.

According to this plea, John Underwood, the husband of the petitioner, Margaret, purchased the land in question of Goldsmith Coffin, but paid no part of the purchase-money, .and subsequently released his title to Thomas Melvin, on his (Melvin's) paying the purchase-money to Coffin.

The lien of the vendor for the purchase-money of land sold is paramount to the claim of the widow of the purchaser for dower. Had this relinquishment of title, then, been made in good faith by Underwood to Coffin, the widow, Margaret, would have had no claim to dower, at all events, without redeeming the land by advancing the stipulated purchase-money and interest. Whether she could have been permitted so to redeem, is a question not now presented for consideration.

The lien of the vendor for his purchase-money, in this state, is assignable, and passes to his assignee. Brumfield et al. v. Palmer, 7 Blackf. 227. In this case, then, Melvin having paid to Coffin the purchase-money due from Underwood, with the consent of the latter, should be regarded as subrogated to Coffin’s rights; and as, had Underwood released fairly to Coffin, the widow could not have sustained a claim to dower, so we think his release, in like manner, to Melvin, who stands in Coffin's shoes, must operate in the same manner upon the widow’s claim to dower.

Perhaps, if the petitioners can show that the land was worth more, when deeded to Melvin, than the purchase-money paid, the widow may be endowed of the excess. But as to this, and whether the petitioners, by' now tendering the purchase-money and interest, can secure any rights, we need not here inquire. See Whitehead v. Cummins, 2 Ind. R. 58.

J. Morrison and S. Major, for the plaintiffs. J. P. Usher, S. F. Maxwell, T. H. Nelson, and J. W. Gordon, for the defendants.

Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.