Miller v. Farmers' Bank

49 S.C. 427 | S.C. | 1897

The opinion of the Court was delivered by

Mr. Justice Gary.

The facts of this case are fully set out in the decree of the Circuit Judge, which will be incorporated in the report of the case. The 1st, 2d, 3d, 6th, and' 7th exceptions all depend upon the question of fact, whether the petitioner’s renunciation of dower, on the mortgage assigned to D. E. Ranham, had ceased to be operative by his action. These exceptions are as follows: “1st. Because his Honor, the Circuit Judge, erred in holding that it was the legal duty of the plaintiff to give notice that her dower had been released from the D. E. Ranham mortgage so as to affect a purchaser at said sale. 2d. Because his Honor, the Circuit Judge, erred in holding that ‘a mere verbal release by D. E. Ranham to the relinquishment of dower of the plaintiff from his mortgage, unknown to the world, and unaccompanied by any acts, declarations or notice, is not sufficient to release the relinquishment of dower on the said mortgage, so as to affect a purchaser at a judicial sale, such as took place under the proceedings above referred to.’ 3d. Because his Honor, the Circuit Judge, erred in holding, that ‘since said sale D. E. Ranham and Fannie R. Miller, plaintiff herein, are estopped by laches, silence, and conduct from claiming that the plaintiff’s dower had been released.’ 6th. Because his Honor, the Circuit Judge, erred in not holding that the renunciation of dower on the third mortgage inured to the benefit of the owner of that mortgage only; and that the owner of that mortgage had the right to release the wife from her renunciation, without the consent of or notice to any other person. 7th. Because the probate judge having found, as a fact, that D. E. Ranham, the owner of the third mortgage, had released the wife from her renunciation of dower, and there being no testimony to the contrary, the Circuit Judge erred in not holding that she was thereby restored to her inchoate right of dower as fully and as effectually as if she had never executed such renunciation.”

1 The only testimony in the case touching this question is that of D. EX Eanham, which is as follows: “D. E.-Ean-ham, sworn: Witness bought the mortgage from the Bank of Edgefield to relieve Mrs. Miller from the effect of her renunciation of her dower thereon. (Objected to by counsel for defendant. Objection overruled.) Witness informed Mrs. Miller that he had purchased the mortgage from the Bank of Edgefield, and that she was released from her renunciation of dower. The witness paid the money to the Bank of Edgefield, but Mrs. Miller furnished a part of the money. (The Court excludes the statement of witness that Mrs. Miller paid part of the money to the Bank of Edgefield. Objected to by attorney for plaintiff.) Cross-examined. Witness says he has not got the mortgage to the Bank of Edgefield with him, and is not certain whether he has it or Gov. Sheppard. Gov. Sheppard had the mortgage at the time suit was brought by the Banners’ Bank, and during the pendency of the said suit. Witness don’t recollect whether he was present before the master when his claim was approved or not. That he did not state to the master before or at the sale that he had released Mrs. Miller from the effect of the renunciation of dower. Witness says he had told no one else except his sister that he had released her from the mortgage, but his brother, P. B. Eanham, was present and knew the facts. Reply. Witness would not have bought the mortgage, except for the purpose of relieving his sister from her renunciation of her dower thereon, and Messrs. Sheppard ad-wised to do so. (Objected to by attorneys for defendant. Testimony admitted.) Mrs. Miller is witness’ sister; she is the plaintiff herein.” None of the exceptions raise the question, that there was error in excluding the statement of witness that Mrs. Miller paid part of the money to the Bank of Edgefield. The testimony fails to show thát there was an agreement between D. E. Eanham and Mrs. Miller by which her renunciation of dower became inoperative. Having reached this conclusion, the other questions raised by said exceptions are merely speculative, and, therefore, will hot be considered by this Court.

The 4th and 5th exceptions will be considered together, and are as follows: “4th. Because his Honor, the Circuit Judge, erred in holding as applicable to this case, ‘that where there is a foreclosure and sale of mortgaged premises upon a mortgage valid against the wife, the result is to divest her of all claim upon the land, and compel her to look to the surplus proceeds of the sale, if any remain, after satisfying the mortgage debt; and if there is no surplus proceeds of sale, after satisfying the mortgage debt, the widow’s dower is gone.’ 5th. Because his Honor, the Circuit Judge, erred in holding as erroneous the judgment of the probate judge that the renunciation of dower by the plaintiff on the D. E. Eanham or third mortgage, was for the benefit of that mortgage alone, and only postponed the satisfaction of that mortgage.”

2 Prom the decisions rendered by the Court of last resort .in this State, the following principles are deduced: 1st. If, at the time of coverture, there are encumbrances on the land, and there is a judicial sale of the land during.coverture to satisfy such encumbrances, the wife is regarded as in privity of the estate with her husband, and whatever rights she may have are transferred to the surplus proceeds of sale after payment of the encumbrances; but she has no right .to have dower set off to her in the land thus sold.

3 2d. If, at the time of, or during coverture, the title of the husband is complete and unencumbered, and he after-wards mortgages the land, the wife is not a privy in estate with her husband, and her right to claim dower in the land is paramount to that of the mortgagee. In such case her rights are not transferred to the surplu's proceeds of sale if the mortgage is foreclosed during the lifetime of her husband, but, after his death, she can have dower assigned her in the land itself.

4 3d. If the title of the husband is complete, and, during coverture, he executes a mortgage .on the land upon which the wife renounces her dower, and the mortgage is foreclosed during coverture, she, by her own act, did that which as effectually deprives her of the right to claim dower in the land, as if the mortgage had been executed for the purchase money of the land, or had been a subsisting lien at the time of marriage. In all these cases the rights of the purchaser are paramount to the wife’s claim of dower. When the wife renounces dower in the land she, by her own act, places herself in privity of estate with her husband. .

5 4th. In cases where the rights of the wife are in privity with those of her husband in the land, and the land is sold 'under a judgment of foreclosure during coverture, the wife is not a necessary party to foreclosure pro■ceedings, and after the death of her husband, has no right to claim dower in the land.

6 5th. When a wife renounces dower on one mortgage, and “there are other mortgages, as in this case, under all of which the land is sold during coverture, the wife, after the death of her husband, is not entitled to relief against thepurchaser of the land on the ground that the renunciation of dower was for the benefit alone of that mortgage upon which the dower was renounced, and only postponed the satisfaction of that mortgage. The purchaser must be regarded as succeeding to all rights of the parties to the action and of-the wife, who cannot dispute his title. This Court is fully satisfied, by the reasoning of the Circuit Judge and the authorities cited in his-decree, that the land was sold under all the mortgages afotesaid. The 4th and 5th exceptions are also overruled.

7 The 8th exception is too general for consideration. It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.