39 W. Va. 638 | W. Va. | 1894
The question involved is: Is plaintiff, Mrs. Mina E. Roush, widow of Peter E. Roush, deceased, entitled to dower in the ti-act of land of fifty seven acres bought by Roush at a judicial sale and conveyed to him by H. R. Howard, special commissioner? The Circuit Court of Mason by décree entered on the 20th day of February, 1894, held her to be entitled to dower and ordered it to be set apart to her, and from this defendant Miller obtained this appeal.
The facts out of which the point of law involved must arise are as follows: On the 13th day of October, 1888, II. R. Howard, as special commissioner, acting in pursuance of a decree sold the tract of fifty seven acres to Peter E. Roush for the price of one thousand and thirty six dollars of which sum he paid in cash two hundred and fifty nine dollars. This sum he borrowed from defendant C. C. Miller giving his note therefor with his father, A. J. Roush, as surety. But no question is involved as to this; it is only mentioned as one of the circumstances of the transaction. For the residue Roush, the purchaser, executed to Howard, the commissioner, his three several bonds for two hundred and fifty nine dollars each payable in one, two and three years with interest from date. By decree entered on the 23d day of October, 1894, the sale was confirmed, and Roush was put into and retained actual possession, and
The demurrer was properly overruled; for neither the common-law remedy retained nor the summary remedy by motion given by statute shall bo construed to take away or affect the well-established jurisdiction, which courts of chancery have long exercised over the subject of dower (see section 8, c. 65, of the Code) ; and Rankin Wiley, as the trustee invested with the legal title, and defendant Miller, the beneficiary claiming his trust-deed to be paramount to her claim of dower were both proper parties.
The only remaining question is: Was the court right in holding her entitled to dower ? The authorities, as far as they have been brought to our attention, and we have been able to examine them, seem to be all one way holding with one accord, that a conveyance of land to the husband, who, at the time he receives his deed, executes a deed of trust to secure the unpaid purchase-money, does not give the husband such a seisin in the land as will entitle his wife to dower.
The statute says: “A widow shall be endowed of one third of ail the real estate whereof her husband or any oth- or to his use was, at any time during the coverture, seized of an estate of inheritance, unless her right to'such dower shall have been lawfully barred or relinquished.” Code, e. 65, s. 1. And this has been our statute-law since 1705. See 1 Rev. Code, 1819, p. 403, note a. But it has always been held, that, where the land is conveyed to the husband, and ho by deed of the same date conveys the land to a trustee in trust to secure the purchase-money, the two conveyances are parts of one and the same transaction, and the seisin of the husband being instantaneous and transitory, the widow to that extent is not entitled to dower. Gilliam v. Moore (1832) 4 Leigh, 30 (24 Am. D. 704). It has become a rale of property, and “a different decision a.t this day would be exceedingly mischievous, and open an inexhaustible source of litigation.” Carr, Judge, Id. 32. See McCauley v. Grimes, (1830) 2 Gill. & J. 318 (20 Am. D. 434); Wheatley v. Calhoun (1841) 12 Leigh, 264 (37 Am. D. 654), and Wilson v. Davisson, 2 Rob. (Va.) 384, where it was
In Cowardin v. Anderson (1883) 78 Va. 88, it was held that the doctrine of treating the deed of conveyance and the trust as constituting one and the same transaction, and therefore the seisin acquired as transitory applies equally in favor of the third person who advances the purchase-money and at the time of the conveyance takes a mortgage on the land as his indemnity; and, although not a case involving the right of dower, I sec no reason why the same principle should not be applied in such cases. See Coffman v. Coffman (1884) 79 Va. 504.
In Hurst v. Dulaney (1891) 87 Va. 444, the principle was held in a case involving the right of dower to apply for the benefit of an assignee of the purchase-money; and I see no reason why it should not be applied to one, who as in this case is an assignee — in substance, a quasi assignee — as well as an assignee in the proper sense; and this view was taken in Kaiser v. Lembeck (1880) 55 Ia. 244 (7 N. W. Rep. 519) not in a case, however, involving the right of dower.
So in Curtis v. Root (1868) 20 Ill. 53, 57, the same doctrine had been laid down in favor of one taking a mort-" gage for the money advanced by him to pay the purchase-money. Moring v. Dickerson (1881) 85 N. C. 466.
In Welch v. Buckins (1859) 9 Ohio St. 331, the rule was held to apply, whether the mortgagee (as defendant Miller was in this case) conveys the land to the mortgageor (as Roush was in this case) conveys the land himself or pro
Therefore, considering that the original lien in this case was held for the beneiit of defendant Miller confessedly paramount to plaintiff’s right of dower, and that by the agreement of the parties the legal seisin was to be and was in Roush only in transitu on its way to Wiley, the trustee, to be held by him for the purpose of securing the identical money by a private instrument under the more complete and effectual control of the parties, it would be a harsh construction of the law to hold such agreement abortive and ineffectual to accomplish the lawful purpose plainly intended (see Childers v. Smith [1820] Gilmer, 196, 200); for it is but another mode of expresslyreserving on the face of the two conveyances, treated as one, a lien on the land for the payment of the unpaid purchase-mouey.
With this view of the case, we are of opinion, that the decree complained of is erroneous, and that plaintiff is only entitled to dower in the surplus after the deed of trust is satisfied. Reversed and remanded.