3 Ohio N.P. (n.s.) 209 | Oh. Ct. Com. Pl., Allen | 1903
Heand on appeal.
The court does not find it necessary to enter into a precise statement of the ease and the questions before it heretofore argued, as all those apparently interested are fully acquainted with the facts.
This proposition has been hinted at, but, so far -as I can find, never decided by our Supreme Court, except in the 27th 0. S., 464, in the ease of Culver v. The Executors of Harper, and in the same volume at page 512 in the case of Fox et al v. Pratt; the last case relying upon the former, and the case of The State Bank v. Hinton, in the 21st O. St., 509. In this last ease it seems that the purchase money mortgage was greater than the value of the land and that the land was sold for a sum insufficient to pay that mortgage. The reasonings and the discussions of the Supreme Court in all these cases- puts this court in great perplexity as to what will probably be the holdings by the Supreme Court upon the questions raised in this case. Apparently the courts in the eases above -cited, as well as all of the cases passing upon this subject, where the mortgage under consideration was not a purchase money mortgage, seem to draw a distinction between the widow’s standing as against a . purchase money mortgage and with respect to a mortgage given to secure the husb-and’s debt, but I think in reality do not so distinguish. I have examined all these cases and undertake to start at the root of this proposition and see to what result these distinctions and reasonings of the Supreme Court will lead.
“That the purchaser of real estate holds the title in trust for the vendor for the security and payment of the purchase price, whether such purchase price is relied upon to be secured by the vendor’s lien or the mortgage of the purchaser, and no inchoate right of dower attaches to the unpaid purchase price. If it did attach, then it would be necessary that the wife join in the execution of the mortgage. The wife, having no interest or right, of course she has nothing to release ; and only in the excess of the proceeds of sale, or, in other words, in the residue of the real estate beyond what would pay the mortgage, would she be endowed. ’ ’
Now is that a correct statement of the law with respect to the wife’s interest in that land? Undertaking to rely upon the Supreme Court, I think it is not. Under several decisions in Ohio it is unnecessary for the wife to sign a purchase money mortgage. And why? Because a vendor’s lien is better, under the law, than the claim of a doweress; and, as was well put in argument by Judge ITandy, a purchase money mortgage is nothing but the written proof of the vendor’s lien. So that the lack of any necessity for her to sign is based, not upon the proposition that she acquires no interest in'the land, but that the right of the vendor, as such, is higher than the wife’s as a doweress.
In Welch v. Buckins et al, 9 O. St., 331, the rule is laid down by Judge Sutliif in these words:
“Where the husband purchases land, takes a conveyance, and mortgages the same back to secure the purchase money, the claim under the mortgage is superior to the claim of the widow for dower. ’ ’
Now that is undoubtedly the law, but it is not based upon the theory that no dower vests in the wife when the lands are conveyed to the husband, but upon the proposition, and the righteous one, that the lien of the vendor is higher than a wife who has put nothing in the property. I therefore say, that when -this land was conveyed to Taylor Conine, that immedi
In case of Kling v. Ballentine, 40 O. St., 391, and which has not been disturbed by later decisions, the rule as to the title taken or held by a purchaser does not agree with the proposition of Judge Moore that I have quoted above; but upon the authority of the 2d Ohio, 223, the court, in Kling v. Ballentine say:
‘ ‘ In Ohio the legal estate is in the mortgagor until condition is broken, and after that—that is, after the condition is broken— it, that is the legal estate, is still in the mortgagor as to all the world except the mortgagee. ’ ’
Therefore, I conclude that as against all the world, except these purchase money mortgages, this woman was entitled to dower in these premises so 'Covered by the purchase money mortgage given or assumed by Taylor Conine.
Suppose, by way of argument, that Taylor Conine had left a policy of insurance payable to his estate or his executor, so that the avails thereof would have been money in his hands subject to the demands against that estate; that it would have been in the sum of twenty thousand dollars and that money had gone into the hands of this administratox*. Had that been true the administrator would have had personalty in his hands sufficient to pay the claims against this land for purchase money, because, although secured by mortgage on the lands, they are demands against the deceased to which the administrator would have to apply, before he sells the lands, the money in his hands applicable to such purchase. And suppose he had, as was his duty, discharged the sums represented by these mortgages, out of that money; there then would have been no purchase money claims against this land, and would not this widow have been entitled to have assigned to her, ,in all that land, as against the world, her statutory dower therein! There can be no question as to this proposition.
Accepting this proposition then as true, could it be said that the administrator, by the making of those payments, have
The emphasis that the courts put on the statement that where she executes the mortgage to secure his debt, simply' means to
Now before finally leaving this branch of this ease, I want to say that this case of Culver v. Harper’s Executor, that was followed in Fox v. Pratt, the court’s reasoning seems to me to be peculiar, although at that time all of the rulings on this subject were different than now. The court states as a reason for their holding in that ease, the mortgage therein being a purchase money mortgage, on page 468, that it would be the height of wrong that a wife should have dower as against the purchase money mortgage. We all agree with that proposition; yet in that case- it appears that there was a surplus of enough to pay this widow the full value of her dower after having fully paid the mortgage debt. So that I can not see what the court meant by that argument, as it did not apply in the ease being considered, and I think the 'court simply followed the general rule as it then stood.
The cases cited by Judge Handy to the court in his brief, 32 0. St., 210, and 33 0. St., 198, do not aid the court in this inquiry, except that the latter ease again holds that the right of the vendor’s lienholder, that is to say, the mortgage for purchase money, is superior to that of the mortgagor’s wife; and the former case, while endowing the wife only in the surplus, there the mortgages, so far as appears, were not for purchase money, and the endowment was made under the old rule now unquestionably changed by the holding of the Supreme Court in the 46th 0. St.
The defendant, Mary F. Conine, in the second cause of action of her answer claims in substance that she loaned her
On the trial of the ease there was ho evidence that she gave or loaned the money to her husband upon the express understanding that it was to be paid on said mortgage indebtedness, or on any particular indebtedness of the husband, and for this reason I do not consider that she is entitled to be subrogated to the rights of the mortgagee under said mortgage securing the note upon which the payment was made.