| Ky. Ct. App. | Jun 12, 1857
delivered the opinion of the court.
The plaintiff brought this action to recover dower in a tract of land which her husband had in his possession for a number of years, but which he sold and disposed of previous to his death.
According to the testimony he settled on the land in 1806, and subsequently purchased it, by executory contract, from Anderson and Yancleave. The time of his purchase does not appear, but as Anderson and Yancleave did not purchase or acquire any interest in it themselves until 1818, the rational inference is, that his contract of purchase was subsequent to that time. In 1824 he sold or exchanged it to a man by the name of Jones, and' put him into possession of it, having only an equitable title to it at the time. Afterwards, in the year 1836, Jones having died, and his heirs desiring to obtain the legal title
According to the principles of the common law the wife was entitled to dower in those lands only which the husband had the legal title. But since the law in respect to trust estates was changed by statute, it has been decided that the widow is entitled to dower where the husband had'such an equitable title as would have authorized a court of chancery to compel the vendor to convey to him the legal title (4 Mon. 268; 4 J. J. Marshall, 67.)
But she is not entitled to dower in land, to which her husband had an equitable title merely, and which he sold and disposed of before his heath. She is entitled to dower in such equitable estates only as belonged him at the time of his death. (Hamilton vs. Hughes, 6 J. J. Marshall, 582.)
According to these principles, it is evident that the plaintiff is not entitled to dower in this case, unless she became entitled to it in consequence of the conveyance of the legal title to her husband by his vendors, in order that he might be enabled to convey it to the heirs of his vendee.
A widow is not dowable of land of which her husband was not beneficially seized during the coverture. In conformity with this principle it has been decided, that she is not entitled to dower in land which the husband had, before the marriage, sold by executory contract, either verbal or written, although he did not convey the legal title to the purchaser until after he was married. (Dean’s heirs vs. Mitchell’s heirs, 4 J. J. Marshall, 451; Oldham vs. Sale, &c., 1 B. Monroe, 77.)
Now here the husband had parted with his equitable title to the land, and with the possession of it, before he obtained the legal title. He held the legal title in trust; it conferred upon him no beneficial interest in the land, but was acquired for the benefit of and conveyed immediately by his deed to the heirs of his vendee. It was not such a beneficial seizin therefore as entitles the wife to dower.
The same doctrine applies when the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor, or to a third person, to secure the payment of the purchase money. Dower cannot be claimed as against rights under that mortgage. The husband is not deemed sufficiently seized by such an instanstaneous passage of the title in and out of him, to entitle his wife to dower as against the (Holbrook vs. Finney, 4 Mass. Rep. 566; Stow vs. Tifft, 15 Johns. 458.)
The purchaser is not estopped by the husband’s deed f>'om explaining the nature of his seizin, and showing that it was not of such a character as entitles his wife to dower in the land,
Wherefore, the judgment dismissing the plaintiff’s petition is affirmed,