52 Tenn. 443 | Tenn. | 1871
Lead Opinion
delivered the opinion of the Court.
In May, 1862, Charles Jones sold to Paul Gregg a tract of land of seventeen acres, near Memphis, for $5,000, of which $2,000 was paid in cash, and three notes, for $1,000 each, payable on time, were executed by Paul Gregg and George E. Powell for the balance. An absolute deed was executed by Jones to Gregg and Powell, with covenants of warranty, reserving no lien for purchase-money, and reciting that the purchase-money was paid. On the same day, Gregg and Powell executed a deed of trust of the land to Ayres in trust to secure the payment of the three notes given for the balance of the purchase-money, with power to sell for the satisfaction thereof in the event of default in the payment. Powell really paid nothing toward the land, and claims no interest in it.
Gregg died without having paid the three notes aforesaid, leaving his widow, Anna Gregg, and two minor children * surviving. The three notes were assigned to Millington by Jones.
Anna Gregg files her bill, stating the foregoing facts, and making Millington, Jones, Powell, and her minor children defendants. She prays that the land
Millington answered and admitted the main allegations of the bill, and joined in the prayer for a sale of the land. The minors answer formally by guardian ad litem. The other defendants failed to answer, and the bill was taken for confessed as to them.
The Chancellor decreed a sale of the land, and at the sale the same brought only about $3,100, which was less than the balance due on the land.
Upon the confirmation of the report of sale, Anna Gregg moved the Court to refer the question to the Clerk and Master to ascertain and report what amount of the sum for which the land sold would be equal to her dower therein. The order of reference was made, and, upon the report of the Clerk and Master that her dower would amount to about $600, the Chancellor refused to allot dower, holding that the purchase-money constituted a prior lien.
From this decree Anna Gregg prosecuted her writ of error to this Court.
It is first insisted that complainant is estopped from claiming dower by the admissions in her bill, in which she claimed dower out of the surplus, after satisfying the balance of the purchase - money. <• It is evident that her bill was filed under the belief that the land would sell for an amount sufficient to pay the balance of the purchase-money, and leave a sufficient surplus to purchase a home for herself and minor children.
But the main question in the case is, whether the lien of Millington, by virtue of the trust deed, overreaches the widow’s right of dower? As Jones secured an express lien on the land for the satisfaction of the three notes, of $1000 each, therein provided for, the transfer of the notes to Millington invested him with the right to enforce the security as fully as Jones could do.
When Jones sold the land to Gregg he had his election to secure the payment of the balance of the purchase, either by executing title bond to Gregg and retaining the legal title, or by executing a deed and reserving a lien on its face to secure the payment of the unpaid purchase-money, or to execute a deed without reserving any express lien, but relying on the lien which would then be implied by law. He chose not to adopt either of these modes of securing and enforcing his vendor’s lien. If he had adopted either of the two first-named modes, it is well settled that his lien would have been superior to the widow’s dower; and by some authorities it is held that the
Jones elected to adopt neither of these modes of security, but entered into a contract with Gregg, by which he conveyed to him the absolute title to the land, acknowledging the payment of the consideration of $5000, and reserving no lien, upon Gregg immediately conveying the land to Ayres, as trustee, to secure the payment of the three notes of $1000 each, the balance of the purchase-money thereof, with power to sell upon default of payment of either "note. By the execution of these deeds, Jones waived all his rights or liens as vendor merely, and relied upon his contract to secure the payment of the notes by a more speedy process than he could have availed himself of by relying simply on. his vendor’s lien in either of the three modes specified. Although the three notes were given for the land, they ceased to have attached-to them the vendor’s lien whenever Jones elected to rely upon his contract to secure payment by means of the enforcement of his trust deed.
It is not material whether the two deeds were executed simultaneously or not, and therefore we deem it unnecessary to consider the question as to the effect of a simultaneous conveyance upon the seizin or ownership' of Gregg. It is clear, that by his deed Jones divested himself of his légal title and vested it in Gregg, and that by the immediate conveyance of the legal title to Ayres in trust, Jones had only the equitable
The deed from Gregg to Ayres was made in trust to pay a ■ debt from Gregg to Jones. The statute makes no distinction as to the kinds of debts to be secured. Upon whát rule of construction can we hold, that the Legislature intended to exclude from the operation of 'the language used, debts created for land, any more than debts founded on any other consideration? We have before us a deed of trust, made to secure the payment of a debt created for land; we have before us the fact that the maker of the trust deed died before the trust was executed by the sale of the land, and that he left surviving him a widow. Because the debt secured by the deed was created for the land, we are called upon to make it an exception to the statute, and to hold that it shall overreach the right of dower in the teeth of the statute. The vendor once had the right to assert the superiority of his lien to the widow’s right of dower, but he elected to make a contract by which he ceased to rely on his vendor’s lien, and chose to rely on his trust deed. By so doing he brought his debt under the operation of the express provision of the statute, and it is not
The decree of the Chancellor is reversed and a decree will be rendered allotting dower to .the complainant. The defendants will pay the costs of this Court and "of the Court below. ' “
Rehearing
In refhsing a rehearing, said:
The petition for rehearing states two reasons for asking a reconsideration of. the opinion in the case:
1. Because the case of Huffaker v. Bowman, 4 Sneed, 94, was not brought to the attention of the Court in the argument.
2. Because complainant does not allege in her bill and prove that she was married to Paul Gregg at‘the time the deed of trust was executed by him.
It is true the case referred to was not brought to the attention of the Court. It is also true that that case was determined in 1856, and after the passage of the act of 1855-6, embodied in the Code as see. 2399. But it is no less true that the question as to the widow’s right to dower was not involved in the case of Huffaker v. Bowman. The question in that case was, whether the judgment lien oí a creditor would attach to the instantaneous seizin of his debtor in land which was conveyed by the purchaser at execution sale to the debtor to be by him conveyed to another redeeming creditor, in pursuance of a contract to that effect — the whole being one continuous transaction. By way of illustrating the position, that the vendor in such a transaction had only an instantaneous title, which was not reached by the judgment lien, Judge McKin
It is not denied that this is the well-settled rule, wherever the right of the widow is governed by the common law. Mr. Scribner closes his review of the doctrine as to instantaneous seizin, with this remark: “ The common law rule that instantaneous seizin, accompanied by a beneficial interest in the husband, is sufficient to confer dower, is very generally recognized in the United States.”
But the common law as to dower has been so changed by statute in Tennessee, that the widow is only entitled to dower in such real estate, legal or equitable, as the husband was seized and possessed of at the time of his death. The cases, therefore, in which the rule as to instantaneous seizin can arise, if indeed any such can arise, are necessarily very rare in our State. The husband having the right, by our
It followed, that as the husband, by a conveyance either by mortgage or deed of trust, could divest himself of his seizin, he could thereby give his creditors secured by mortgage or deed of trust, priority over his widow’s dower right, and postpone her to her dower right in the surplus, by virtue of the statute giving her dower in equitable estates. It was because the law was so held in '5 Hum., 26, 'and 8 Hum., 710, that the Legislature in 1855-6 interposed and enacted that the widow should “be entitled to dower in lands mortgaged or conveyed in trust to pay debts, when the husband dies before foreclosure of the mortgage, or sale under the deed.” This act was carried into the Code at section 2399. The necessary legal effects of this enactment are, first, to abolish the common law rule which made the right of dower dependent on the fact of seizin as to lands conveyed by mortgage or deed of trust;' and second, to give the widow priority over the creditors so secured, if the husband dies before the mortgage is foreclosed or the land sold under the deed. It follows, that when a widow claims dower under this statute the question of the seizin of the husband at his death does not arise, and therefore the rule of the common law as to seizin has no application. Such a case must be determined alone by the construction of the statute. In the case at bar
The other ground for rehearing is, that the pleadings and proof fail to show that complainant was the wife of Paul Gregg at the date of the deed of trust, on the 29th of May, 1862, and hence that she is not entitled to the benefit of sec. 2399 of the Code. This is a new point, not made in the answer nor in the former argument of the cause. It is now made under a misapprehension of the facts as presented by the pleadings. The bill alleges that Paul Gregg died in February, 1864, leaving two minor children; that he executed the deed of trust on the 29th of May, 1862, and that as widow she is entitled to dower. Jones, for whose benefit the deed of trust was executed, fails to answer, and there is a pro oonfesso as to him. Millington, the assignee of the notes secured in the trust deed, answers and admits that complainant is the widow of Paul Gregg as charged, but insists that his rights are superior to those of the widow.
The facts charged in the bill are not denied, but admitted, so far as they are alleged. If it be true that in February, 1864, when her husband died, complainant had two minor children by him, the inference is altogether probable that their marriage took place prior to May 29th, 1862. The case has been so treated until now, and we have no doubt as to the fact.
The petition for rehearing is dismissed.