100 Va. 600 | Va. | 1902
delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court of Augusta county, and the case is as follows:
H. H. Varner died in Augusta county on or albout the 25th day of April, 1887, intestate, leaving surviving him a widow, Agnes A. Varner, and five infant children. He was at his death seised 'and possessed of a tract of 12 6-1 acres of land, situated in said county, upon which he had given two deeds of trust, one to secure to the Valley Mutual Life Association $1,100, and the other to secure Trances Hogshead $200, in both of which duly recorded deeds his wife united. H. H. Varner having died before any sale of the land was made under either of the trust deeds, and the debts thereby secured, with the exception of a balance of $70.62, having been satisfied with the proceeds arising from the sale of a part of the land in a suit instituted for the settlement of Varner’s estate, and by applying, by authority of a decree of the court in that case, the share of his five children in the proceeds from a life insurance policy he held in the Valley Mutual Life Association, for the benefit of his wife and children, the Circuit Court, in this cause, held that the widow, Agnes A. Varner, was entitled to dower in the whole 126-a* acres of land, and confirmed the report of the commissioners assigning to her, as dower, one-third of the land.
“The general rule is that when the husband has mortgaged his lands before coverture, or the wife during coverture has united with him in mortgaging land belonging to him, and such land is sold under the mortgage, the widow, if the sale tabes place after the death of the husband, and the wife, if the sale takes place before his death, in jurisdictions where the inchoate right of dower is regarded as such an interest as must be protected, is entitled to have her dower assigned or reserved from
The reason for the general rule, which confines the widow to one-third of the surplus, is thus stated by Chancellor Walworth in Hawley v. Bradford, 9 Paige, 200; 37 Amer. Dec. 390: “It is settled law that where the wife pledges her separate estate, or the reversionary interest in her real property, for the debt of her 'husband, she is entitled to the ordinary rights and privileges of a surety.....I am not aware of any decision, however, in which the principle of suretyship has 'been -applied to a case like the present..... Strictly speaking, the wife has no estate or interest in the lands of her husband during his life which is capable of being mortgaged or pledged for the payment of his debt. Her joining in the mortgage, therefore, merely operates by way of release or extinguishment of her future claim to dower ¡as against the mortgage, if she survives her husband, without impairing her contingent right of dower in the equity of redemption. The master, therefore, was right in supposing that Mrs. Bradford was not entitled to be endowed of the whole proceeds of the mortgaged premises, but only of the surplus which remained after paying the mortgage debt, and the costs of foreclosure.” To the same effect is Bank of Commerce v. Owens, 31 Md. 320 (60 Am. Rep. 60), citing numerous authorities.
In Land v. Shipp, ante p. 337, 348, it is said: “Whether there has 'been an alienation by the husband in fee of the equitv of redemption he held in the land to satisfy a lien or encumbrance thereon ¡superior to his wife’s right of dower therein, or the conveyance be made by the husband of his equity of redemption to a trustee, without the wife’s concurrence, to secure a debt of the 'husband, and there is a sale of the land in his lifetime by the
It was, of course, there meant to confine the widow’s right of dower to one-third of the surplus, thus entirely disregarding tbe value of her dower in tbe whole land, for, if tbe wife was to be treated as a surety for tbe husband, to be exonerated out of tbe surplus, to tbe full value of her dower in tbe whole, tbe plain provision of tbe statute that she is to be endowed only of tbe excess from tbe proceeds of tbe sale of tbe land, over and above tbe amount of the lien or encumbrance superior to her dower, would be transcended, and she would be given dower in tbe whole land, and not merely in tbe equity of redemption. Of that, or what is tbe same thing, of the estate subject to tbe mortgage, as was said in Wilson v. Davisson, 2 Rob. 403, tbe husband is to be considered as having died seised.
Professor Graves, of tbe University of Virginia, in bis forthcoming work on Eeal Property, quotes tbe general rule as laid down in 10 Amer. & Eng. Enc. L., supra, tbe reason for tbe rule given in Hawley v. Bradford, 9 Paige, supra, and then proceeds to state bis conclusion as to tbe extent of tbe dower right in Virginia, as follows: “When tbe land is sold in the lifetime of the husband, tbe Code (sec. 2269) places tbe case where tbe wife unites with tbe husband in tbe deed creating tbe lien or encumbrance, along with that of a lien or encumbrance 'created before marriage, or otherwise paramount to tbe dower of tbe wife,’ and declares as to all alike that 'if a surplus of tbe proceeds of sale remain after satisfying tbe said lien or encum
In Land v. Shipp, 98 Va. 284, a number of authorities are cited with approval, in support of the view that while the wife’s inchoate right of dower in her husband’s land is an interest which may be released, it is not the subject of grant or assignment, nor is it in any sense an interest in real estate.
It is not, however, the theory of the wife’s suretyship that is so much relied on by the learned cotmsel for appellee, but that her claim to dower in the whole of the land of which het husband died possessed is authorized by the decision of this court in Wilson v. Branch, 77 Va. 65, cited with approval, it is contended, in Land v. Shipp, ante p. 337.
In other words, the contention is that, as the land upon which the two deeds of trust rested was not sold to satisfy the debts thereby secured in the lifetime of the husband, section 2269 of the Code does not apply, and that therefore Agnes A. Vainer, appellee, is entitled to her full right of dower (except as against the secured creditors) in the land, as was held by the lower court; and Wilson v. Branch, supra, and the reference to that case in Land v. Shipp, are mainly relied on as supporting that contention.
In the last named case, having in mind the general rule that a widow cannot be compelled to commute her dower where it is practicable to assign it in kind, reference was made to Wilson v. Branch as authority for that proposition; but, if what was there said is susceptible of the construction that is here contended for, the language of the reference was unguardedly used; and, in fact, it was not necessary to a decision of the ease under consideration.
In Wilson v. Branch, supra, there were two estates in land
These extracts undoubtedly warrant the conclusion that the court yras of opinion that the widow was entitled to full dower, and in the land itself, and that it was not to be sold under the deed of trust unless it became necessary to trench upon it to pay the creditor. But there is not a word of discussion as to the extent of the widow’s dower right.
After quoting the foregoing extracts from Wilson v. Branch, Prof. Graves, in his work on Real Property, supra, makes the following accurate comment: “The mind of the court is entirely on the point of dower in hind. This it declares practicable, having regard to the relative amounts of the value of the land and of the debt secured. And three Virginia cases are relied on, viz.: Blair v. Thompson, 11 Gratt. 441; White v. White, 16
The authorities elsewhere, to which he refers, are collated in an excellent article in 8 Va. Law. Reg. 166-7, and embrace decisions by the courts of many States.
The cases to the contrary, cited by counsel for appellee here, are Kling v. Ballentine, 40 Ohio St. 391; Mandel v. McClave, 46 Ohio St. 407, 15 Am. St. Rep. 627; and Jones v. Bragg, 33 Mo. 337.
With reference to the last named case it is only necessary to say that the decision that the widow was entitled to dower in the land was put upon the ground that the mortgage thereon was paid out of the estate of the deceased husband, and not by the purchaser of the land, who was claiming subrogation to the rights of the mortgagee as against the widow. The case, therefore, is wholly unlike the case at bar.
In the Ohio cases the decisions were avowedly placed on the theory of the wife’s suretyship for her husband, and it is conceded that where that doctrine is repudiated, the result must be to confine the widow to one-third of the surplus.
In Heth v. Cocke, 1 Rand. 344, it is held that the only claim of the widow in her husband’s real estate which has been mortgaged by him before marriage is to dower in the equity of redemption; and it is said that the same principle applies as well to mortgages after marriage where the wife unites in the mort
To the same effect, practically, is the case of Wheatley v. Calhoun, 12 Leigh, 269, where the sale of the land was made after the death of Calhoun, whose widow was claiming dower therein. There were two deeds of trust on the property of Wheatley and Calhoun; one to secure a debt for purchase money paramount to the claim of dower, and the other not so as to Mrs. Calhoun, she having refused to unite in the deed. The sale was under the second deed, and Tubker, J., speaking for the entire court, says: “Had the sale, then, been under the first deed of trust of March, 1824, there would, I think, be an end to the case. But it was not; and, of course, the equity of redemption under that deed has never been foreclosed, as to any rights of the widow. She was, without question, entitled to dower in that equity of redemption, to the extent to which her husband, Calhoun, had made payment of his -proportion of the purchase money. In ‘ other words, if upon a sale, there should be an excess over and above the debt secured, that excess, being the measure of the equity of redemption, would belong to Calhoun and Wheatley in the proportions in which they have -paid the purchase money, and Calhoun’s widow would have her dower in her husband’s portion.”
There, again, the court clearly intended to confine the widow
By uniting in the deed the wife enables the husband to convey the legal title to the creditor, and bars -her dower in the land. iSTothing remains in the husband but the equity of redemption, which is the creature of equity. In this equity she had no dower at all until the statute giving dower in equitable estates. The equity of redemption descends as an estate to the heirs. Why, then, should the widow, instead of receiving her dower in it, claim dower in the whole land, or in the whole to be satisfied out of the surplus, where the land has been sold, as if she had never joined in her husband’s deed?
The word dower, in its ordinary acceptation, since its first introduction into this country, has been used synonymously with the word “third.” 1 Scrib. on Dow. 25. So, by “dower out of all lands of which the husband is seised during coverture,” is meant “one-third of such lands”; by “dower in the equity of redemption” is meant dower in the land subject to encumbrances paramount to dower, i. e., one-third for life of what remains of the land after satisfying the encumbrances; and by “dower in said surplus” (as is the language of the statute) is meant “one-third of such surplus for life.”
In the case at bar, the insurance money was not the husband’s money, but that of the -widow and children, as the policy was made payable to them. Ho question arises as to exoneration out of the personal estate of the husband. The liens upon the land have been paid by sale of a part of the land (in which the widow could have no dower till the liens thereon were paid), and with the children’s money, and now the widow, who did not contribute, claims full dower in the land, as if she had done so.
In 1 Scrib. on Dower, 532, it is said: “The rule exacting contribution from the widow where a person deriving title through her husband has redeemed the lands from a mortgage
An authority exactly in point, also, is the well considered case of Swaine v. Perine, 5 Johns. Chy. 482, where it is said: “The plaintiff was a party to the mortgage to 'Dunn, and her claim to dower was only in the equity of redemption, or the interest -which her 'husband had remaining in the land, 'after satisfaction of the mortgage. Her right to dower was subject to the mortgage; and if the heir has been obliged to redeem the land, by paying that mortgage to which the plaintiff was a party, she ought in 'justice and equity to contribute her ratable proportion of the monies paid towards redeeming the mortgage. The redemption' was for her benefit, as far as respected her dower. To allow her the dower in the land without contribution, would be to give her the same right that she would have been entitled to if there had been no mortgage, or as if she had not duly joined in it. It would be to give her dówer in the whole absolute interest and estate in the land, when she was entitled to dower only in a part of that interest and estate.” See also Bank of Commerce v. Owens, supra.
“If the heirs redeem, or the widow brings her writ of dower, she is let in for her dower on her contributing her proportion of the mortgage debt.” 1 Lomax Digest, 103.
Baldwin, J., in Wilson v. Davisson, supra, says: “A widow’s right of dower, however, in an equity or redemption, or, in other words, in the land subject to the encumbrance, legal or equitable, is merely conditional, and dependent upon the fact of redemption. ■ If the heir redeems she is dowable on contributing ratalbly; or áhe may herself redeem, to the extent of her dower, by like contribution.” See also the general rule as stated in 10 A. & E. Ency. L. (2d ed.) 166, where numerous authorities are cited.
The fact that the statute, now section 2269 of the Code, was enacted ¡giving a widow dower in the surplus remaining after paying the lien or encumbrance on the land paramount to her dower where the land was sold in the lifetime of the husband, neither by inference nor otherwise goes to indicate that, where mortgaged lands, in which the dower is relinquished, are sold after the husband’s death, or where the equity of redemption descends to the heirs and they have' redeemed the land, the widow shall take dower in the whole land. The sole object of the statute was to give the wife in her husband’s lifetime an interest in the equity of redemption, contingent, however, upon her surviviug her husband, in accordance with Judge Allen’s dissenting opinion in Wilson v. Davisson, supra. It was to give the inchoate and contingent dower of the wife the power to attach to the equity of redemption, during his lifetime, so that after a sale in her husband’s lifetime, it would survive and be enforceable against his equity of redemption in the lands after his death, just as if the sale had been made after his death, as was held in Land v. Shipp, ante p. 337.
Where there was no sale of the land in the lifetime of the husband, as in the case at bar, the equity of redemption descends to the heir, subject to the widow’s dower, but before she can be endowed in the whole land she must pay an equitable proportion of the liens or encumbrances on the land paramount to lier dower.
The Circuit Court-, therefore, erred in decreeing to appellee dower in the whole land of which her husband died seised and possessed; and the decree appealed from must be reversed and annulled, and the cause remanded to be further proceeded with in accordance with this opinion.
Reversed.