29 Mo. 25 | Mo. | 1859
delivered the opinion of the court.
This is a suit, by purchasers under an execution at a sheriff’s sale, against a former widow and her husband, to have her dower in her first husband’s estate assigned to them. N. H. Mardus was seized of lands, and died, leaving Parmelia Mardus his widow, who was- entitled to dower in his estate, but which was never assigned to her. She, Parmelia, intermarried with the defendant Solomon Stickell, who during the marriage contracted debts for which he was sued, and,
The wife being seized of a life estate in her own right, her interest may be sold for debts contracted by her husband during the coverture for so long a tirpe as the marriage may subsist. But it is well settled that until dower is assigned the widow has no estate in the,land for which an ejectment may be maintained, or which can be sold under execution. Her interest, until dower is assigned, is a mere chose in action. Whether she could by a voluntary assignment of this chose in action enable her assignee to sue in equity to have the dower assigned is not a question involved in this case. By the statute in force at the time of the first husband’s death, and which still is the law, a creditor of the widow or of her husband may have her dower assigned. But the plaintiffs can not be regarded as creditors within the meaning of the act. The law will not suffer the widow’s dower to be assigned in a way which in many 'cases may prove detrimental to her. If the dower interest is permitted to be sold under execution before it is assigned and the purchaser shall be compelled to go to law in order to have it allotted to him, the uncertainty whether it would ever be assigned would inevitably cause a diminution of price, which would not occur if the dower was assigned before the sale took place. To sell the right of dower at public auction and then have it assigned, the purchaser taking the risk whether it will be assigned or not, would generally cause a sacrifice of it. The creditor should have the dower actually assigned before it is sold.
The plaintiffs, who were purchasers at the sheriff’s sale, can not be regarded as assignees of the interest and entitled therefore to go into equity to have the dower assigned to them. Besides the objection above stated to a sale of dower before it is assigned, the interest of the widow being such
There is nothing in the record which shows that the widow was entitled to quarantine in the land, for which, under our statute, she would have been entitled to maintain an ejectment.
The judgment is affirmed;