| Mo. | Oct 15, 1868
delivered the opinion of the court.
The plaintiffs are the only surviving children and heirs at law of Obed M. White, who died in 1888 intestate, leaving a small estate in Marion county. Joseph Drew, now deceased, became administrator of said estate in 1847, and shortly afterward purchased a tract of land situated in said county, for which he paid $1,590 a part of the purchase money, $950, was funds belonging to said estate. The land was conveyed to him as in his own right, and he took possession of it at the time of the purchase, and continued to occupy and use it until his death, which occurred in 1866. The rents and profits, after deducting all moneys expended in improvements and repairs, amounted to $939.68, while the same was occupied by said Joseph Drew. This suit was brought against the said Elizabeth Drew, who is the widow, and Dolphus, who is the only child and heir at law, of the said Joseph Drew, and T. E. Hatcher, the administrator of his estate, to have a resulting trust declared in said lands in favor of the plaintiffs, and for an account of the rents and profits. On the hearing, the facts were found by the court, the substance of which is stated
It is stated in the motion that the- estate of said Joseph Drew was wholly insolvent. And the court so found on the hearing.
The court then “ ordered and decreed that the sheriff, out of said fund, pay the costs accruing in the cause from and after the rendition of the interlocutory decree in this cause, amounting to the sum of $119.25 ; that out of the residue he pay the plaintiffs the fVVo? amounting to the sum of $3,752.66; that out of the l'emainder he pay all the costs accruing in this case from the beginning to the rendition of the interlocutory decree herein, amounting to the sum of $82.14 ; that he then pay to Elizabeth Drew, widow, the sum of $582.93, the present value of her dower interest in the remainder of the fund, after paying all costs and the share of TWo decreed to plaintiffs; and that the remainder of said fund, to-wit, $1,863.02, be paid to T. E. Hatcher, the administrator of said Joseph' Drew, to be by him administered according to law. The court doth further adjudge and decree that the defendant Elizabeth Drew is not entitled to dower in that portion of said estate and fund decreed to plaintiffs. * * * * It is further considered by the court that the plaintiffs have, and recover of the goods and chattels and estate of Joseph'Drew, deceased, in the hands of the defendant, T. E. Hatcher, administrator of said Joseph Drew, the sum of $939.62, the amount of rents and profits ascertained to be due from said estate to the plaintiffs; and that said sum be paid, by said Hatcher, out of the general assets in his hands for that purpose, after said judgment
The plaintiffs removed the case to the District Court by writ of error, where the judgment was affirmed, and the' cause is now here on error. The plaintiffs complain of the action of the Circuit Court in refusing to order the payment of the sum of $939.62, found to be due them for rents, etc., out of the money directed to be paid to the administrator. It is urged that the plaintiffs and defendants occupy the relation of tenants in common, and that the plaintiffs have an equitable lien on the defendants’ interest in the land for the rents and profits arising from the use of their own interest, and that such lien would entitle them to the payment of their claim out of the defendants’ interest, to the exclusion of other creditors. In support of this position, we are referred to the case of Hannan v. Osborn, 4 Paige Ch. 336" court="None" date_filed="1834-01-28" href="https://app.midpage.ai/document/hannan-v-osborn-5548067?utm_source=webapp" opinion_id="5548067">4 Paige Ch. 336. That was a proceeding for a partition between several tenants in common, and for an account of the rents and profits received by one of the defendants. In ordering a sale of the property, the court intimated that the amount due from one of the tenants in common to the others, for rents and profits, was an equitable lien on the interest of the party receiving such rents, etc.
The reason for such lien is not stated by the court, but is probably based on the principle that courts of equity sometimes treat real property and the profits arising therefrom as the same; and when one of the parties in interest has appropriated such profits, being a part of the common property, to his own use, they deduct the amount so appropriated from the share of such party in the remainder, when a partition of the property is made.
If this is a correct principle of law, can it be applied to this case, where the parties were not strictly tenants in common? The plaintiffs had no legal title to the property. Their right was a secret trust, raised by implication, to such proportion of the land as that part of the purchase money used, belonging to the estate of their ancestor, bore to the whole of the purchase money. The rule on which the trust is raised is that, when trust money is used by a party intrusted with it in purchasing real estate in his own
But they will not go further and create a lien on other property for the same or other money used by the trustee. The doctrine of constructive liens will not at this day be applied to cases not clearly within established rules. Secret trusts in and constructive liens upon real estate are "now discouraged. (10 Barb. 626" court="N.Y. Sup. Ct." date_filed="1851-01-15" href="https://app.midpage.ai/document/taylor-v-baldwin-5458033?utm_source=webapp" opinion_id="5458033">10 Barb. 626.)
Elizabeth Drew, one of the defendants, also objects to the ruling of the court. She insists that her dower interest extended to the whole tract of land, for the reason that she had no knowledge of the rights of the plaintiffs when she intermarried with the trustee, and that she occupies the position of a purchaser without notice. The dower of a wife is clearly limited to. the property of her husband, and cannot extend to property held by him in trust for others, whether she had notice of the trust or not. The application for dower in the whole property was properly denied by the court.
The judgment is affirmed.