74 Ind. 333 | Ind. | 1881
The appellant was the plaintiff below. Her' complaint was for a partition of real estate, of which she-alleged the appellee was in possession, claiming the exclusive title. The facts stated are, that the plaintiff is the widow of Samuel R. Keith, deceased ; that, during his lifetime, oneMilley Fish executed to him a title bond- for the land in question, conditioned for a conveyance in fee simple on the payment of the purchase-money ; that the decedent paid more than one-third of the purchase-money, and gave his notes for the residue; that afterward said Samuel assigned the title-bond to the defendant Hudson, to indemnify him as surety
It is claimed by the appellant, that she is entitled to one-third of the land in question, either under section 27 or section 29 of the statute of descents. These sections are as follows:
“Sec. 27. A surviving wife is entitled, except as in section seventeen excepted, to one-third of all the real estate of which her husband may have been seized in fee simple, at airy time during the marriage, and in the conveyance of which she may not have joined, in due form of law; and also of all lands in which her husband had an equitable interest at the time of his death.
■ “Sec. 29. If the husband shall have made a contract for •lands, and, at the time Of his decease, the consideration in whole or in part shall not have been paid, but after his death the same shall be paid out of the proceeds of his estate j his*335 widow shall have one-third of said lands in the same manner •as if the legal estate had vested in the husband during the •coverture.”
If Samuel E. Keith had any equitable interest in the real estate in controversy, at the time of his death, it was subject to the burden of the notes on which Hudson was surety, and to the unpaid purchase-money. Had Keith died the absolute owner of the title bond, the lien of the vendor for the purchase-money due was paramount to the claim of his widow. McMahan v. Kimball, 3 Blackf. 1; Fisher v. Johnson, 5 Ind. 492; Talbott v. Armstrong, 14 Ind. 254; Patton v. Stewart, 19 Ind. 233; Crane v. Palmer, 8 Blackf. 120; Alexander v. Herbert, 60 Ind. 184.
Unless the arrangement made between Hudson and the administrator is to be regarded as a payment of the balance of the purchase-money from the proceeds of the estate of Samuel E. Keith, such purchase-money is still owing to Milley Fish; or, if it has been paid by Hudson, it is owing to him, and he is subrogated to the rights of the vendor. 'That the parties did not regard the transaction as a payment of the purchase-money by the administrator, so as to re-rest the title bond in the estate of Keith, is evident from the fact that the agreement of Hudson to reassign the title bond was surrendered, leaving the assignment to him absolute.
Whether the administrator had lawful authority to make this contract with Hudson we need not inquire, as no objection is made to it by the appellant. On the contrary,' she claims a supposed benefit from the act of the administrator, and, so far as she is concerned, afiSrms it. If the appellant seeks to profit by the arrangement between the administrator and Hudson, it would be manifestly inequitable to cast all its burdens upon the latter. He was entitled to hold the tifie bond until the notes on which he was surety were paid; and, if compelled to pay them himself, he Avas entitled to be .reimbursed from the proceeds of the bond or of the land.
There is one contingency in which the lien of a vendor for purchase-money yields in part to the,claim of the widow of' the vendee. Section 30 of the statute of descents provides that “If the husband shall have made a contract, subsisting-at the time of his death, for real estate and paid only part of the consideration, and said real estate shall be sold after his-death under any decree, or by virtue of any power or devise-in the will of the husband, the widow shall be entitled toiler third of such real estate, in proportion to the amount paid under said contract by the said husband.”
Under this section it was held in Carver v. Grove, 68 Ind. 371, that when a deceased husband had paid one-third of the price of a tract of land, and his administrator afterward, sold said land under an order of the proper court, to raise means to pay the residue of the purchase-money, the widow was entitled to one-ninth of the land as against the purchaser at the administrator’s sale. But it does not appear in the
We find no error in the action of the circuit court, and its judgment should be affirmed.
Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment below be, and it is hereby, in all things, affirmed, at the costs of the appellant.