87 Va. 444 | Va. | 1891
delivered the opinion of the court.
The principal question in the case is whether the appellant, who is the widow of James Hurst, deceased, is entitled to dower in the tract of land, known as “Bluff Point,” in the bill and proceedings mentioned. The facts are these:
From this statement it is very clear, as the circuit court held, that the claim to dower in the land cannot be sustained. The deed of January 1, 1861, from Haynie to Hurst, and the deed of trust executed on the same day, are considered in equity, not as separate and distinct transactions, but as part of the same contract; so that the seisin of the husband was for a transitory instant only, and of such a seisin, according to an ancient principle of the common law, the wife is not entitled to dower. This principle has so often been recognized by this court, that it would be a waste of time to do more than merely cite the cases, and they are Gilliam v. Moore, 4 Leigh, 30; Wheatley’s Heirs v. Calhoun, 12 Id., 264; Wilson v. Davisson, 2 Rob., 384; Robinson v. Shacklett, 29 Gratt., 99; Summers v. Darne, 31 Id., 791; Coffman v. Coffman, 79 Va., 504.
These cases also establish the proposition that if both instruments are executed, on the same day, the presumption is they
Nor is the present case affected by the fact that the deed of trust was for the benefit of an assignee. The deed was given to secure the unpaid purchase-money for the land, and that is sufficient. The principle above stated has often been held to apply in favor of a third person who advances the purchase-money, and at the time of the conveyance takes a mortgage on the land for his indemnity, and it equally applies to a case like the present. Cowardin v. Anderson, 78 Va., 88.
Thus far, then, the decree appealed from is right. But the court went on to decree, not only that the appellant is entitled to dower in the surplus arising from the sale of the land, but that the defendant is liable accordingly; that is, that he must pay to the appellant the sum of nine dollars per annum during her natural .life, which is the annual interest at six per cent, on one-third of the surplus. This was erroneous. The statute, now carried into section 2269 of the Code, although it provides that the widow in such a case shall be entitled to dower in the surplus, does not make the land, in the hands of a bona fide purchaser at a judicial sale thereof, liable for her claim, nor is he bound to see to the application of the purchase-money. In other words, she must look to the surplus, and not to the purchaser who has paid it. Robinson v. Shacklett, supra.
The decree must, therefore, be reversed, and the bill dismissed.
Decree reversed and bill dismissed.