33 Mo. 337 | Mo. | 1863
delivered the opinion of the court.'
Garth sold William H. Jones a tract of land in Holt county. Jones paid a part of the purchase money and gave to Garth a mortgage of the land to secure the payment of the remainder — in which mortgage his wife, the plaintiff, joined, relinquishing dower. Jones died, leaving a portion of the purchase money, which was secured by the mortgage, unpaid. His administrator, under an order of sale made by the County Court, sold the land to the defendant for a full price. At the sale by the-administrator, he announced that he would sell the fee simple, (and not merely the equity of redemption,) and would apply so much of the money accruing from the sale as might be necessary for that purpose to the ex-tinguishment of the mortgage. He did pay off the mortgage by authorizing the defendant to pay off the same and accepting the payment so made by the defendant as a payment on account of his bid for the land. The defendant paid the administrator the remainder of his bid. The plaintiff brought this suit for her dower in the land, and the defendant set up the facts above recited as a bar to her claim.
The court below held (in effect) that they constituted a valid defence, and gave judgment against the plaintiff.
We think that the court erred. A widow shall be endowed of her husband’s lands “ to which she shall not have relinquished her right of dower in the manner prescribed by law.”
Here there is no pretence that she has so relinquished her right. She had done so in the mortgage given to Garth, and the defendant claims to be subrogated to Garth’s rights under the mortgage; but were any subrogation possible in the case, it could not be made for the benefit of the defendant, because the mortgage was not paid by him, but by the estate of the deceased Jones. The mortgage is paid and dead, and the wife’s relinquishment of dower died with it. If Jones in his life-time had sold the land to the defendant and applied the proceeds of the sale to the extinguishment of the mortgage, the defendant would scarcely have been guilty of the absurd
If, at the time of the sale- by the administrator, there had been no mortgage in existence, there would of course have been no doubt of the widow’s right to dower, notwithstanding that the purchaser may have paid a full or even an excessive price for the land. In fact the administrator, by assuming to pay the mortgage, placed the land in the condition of being unencumbered by the mortgage, (so far as the purchaser was concerned,) and he bought it so unencumbered and unaffected in any way by the mortgage, and of necessary consequence he cannot use the mortgage to defeat the widow’s right of dower.
This case differs essentially from that of Vallé’s heirs v. Fleming’s heirs, 29 Mo. 152.
Judgment reversed and cause remanded for further proceedings ;
